Museado / NARA Collection rr-0840 — Collection rr-0840
Recent Folios
Login Register
English (angol) español (spanyol) magyar

Survos folio page chat

[Environment] - Preservation and Management of Californiaäó»s Coastline, September 1972 (1 of 3)

Ask the Scholar

Page 1 of 1
I can add historical knowledge about this page.

Page image

Page 1

OCR

Ronald Reagan Presidential Library Digital Library Collections This is a PDF of a folder from our textual collections. Collection: Reagan, Ronald: Gubernatorial Papers, 1966-74: Press Unit Folder Title: [Environment] - Preservation and Management of California's Coastline, September 1972 (1 of 3) Box: P36 To see more digitized collections visit: https://reaganlibrary.gov/archives/digital-library To see all Ronald Reagan Presidential Library inventories visit: https://reaganlibrary.gov/document-collection Contact a reference archivist at: [email protected] Citation Guidelines: https://reaganlibrary.gov/citing National Archives Catalogue: https://catalog.archives.gov/ PRESERVATION and MANAGEMENT of CALIFORNIA'S COASTLINE A Critical Analysis of The California Coastal Zone Conservation Initiative of 1972 KAHL ASSOCIATES and RALPH ANDERSEN AND ASSOCIATES PRESERVATION AND MANAGEMENT OF CALIFORNIA'S COASTLINE A CRITICAL ANALYSIS OF THE CALIFORNIA COASTAL ZONE CONSERVATION INITIATIVE OF 1972 September, 1972 Prepared by: KAHL ASSOCIATES - Research Consultants Suite 805 Government and Public Affairs 1101 17th Street, N. W. Washington, D. C. 20036 RALPH ANDERSEN AND ASSOCIATES P.O. Box 13278 Sacramento, California 95813 Technical Support in Selected Areas Provided By The Government Research Company Washington, D. C. Table of Contents Page Introduction 1 THE LEGAL PERSPECTIVE. 5 Land Use Planning 5 General 5 National Land Use Planning 5 State Land Use Planning and Regulation 8 Regional and Metropolitan Planning 10 Police Power 12 Basic 12 Zoning 13 Subdivision Regulations 15 Building and Housing Codes 17 Initiative and Referendum 18 Constitutional Limitations 19 Police Power V. Inverse Condemnation 20 Pre-emption 23 Summary 23 SUMMARY OF THE CALIFORNIA COASTLINE INITIATIVE 25 Summary of Provisions 25 Who Would Serve on the Commissions? 25 What Would the Commissions Do? 29 What is the Nature of the California Coastal Zone Conservation Plan? 30 How Would the Interim Permit Procedure Work? 32 General Provisions 32 Specific Review and Appeal Procedures 37 Other Provisions 38 Amendments 38 Termination 38 Conflict of Interest 38 Penalties 39 CURRENT POLICIES AND PROGRAMS FOR LAND USE CONTROL The Federal Role 40 Management Programs 41 Bureau of Land Management 42 Fish and Wildlife Service 43 National Park Service 44 Forest Service 44 Transfer of Federal Lands to State and Local Governments 44 i Page Inter- and Intra-Governmental Cooperation 45 Environmental Protection Act. 47 Regulatory Programs 48 Corps of Engineers 48 Coast Guard 49 Atomic Energy Commission 49 Development Programs 50 Transportation 50 Administration 50 Budget 51 Proposed Changes 51 Water and Sewer 52 Office of Water Programs 52 Department of Housing and Urban Development 53 Public Facility Loans 53 Economic Development Administration 54 Farmers Home Administration 55 Other Development Programs 56 Planning Programs 57 701 Planning Program 57 Authority 57 Administration 58 State Agencies 58 Budget 58 Proposed Changes 59 Outlook 59 Water Resources Planning Council 59 Authority 59 Administration 60 Budget 60 Bureau of Outdoor Recreation 60 Economic Development Administration 61 Legislation 61 Land Use Policy and Assistance Act of 1972 (S632) 62 Sanctions 63 Federal Role 64 Inter-Agency Cooperation 64 Federal-State Cooperation 64 State-Local Role 65 Outlook 66 National Land Policy and Management Act of 66 1972 (HR 7211) 66 Private Lands ii Page Public Lands 67 Review of Public Lands 68 Outlook 68 National Resource Lands Management Act (S2401) 69 National Coastal Zone Management Act (S3507) 69 Administration 70 Budget Authorization 71 Federal-State Cooperation 71 Coastal Zone Management Act (HR 14146) 71 Outlook 72 Summary of Legislation 72 The State Role 76 Introduction 76 Direct Statewide Control 77 Hawaii 77 Administration 77 Controls and Criteria 78 Assessment 80 Vermont 82 Administration 82 Controls and Criteria 84 Assessment 87 Maine 89 Administration 89 Controls and Criteria 90 Assessment 92 Statewide Criteria and Standards 94 Colorado 94 Administration 94 Controls and Criteria 95 Assessment 97 Direct Statewide Control in Selected Areas 97 Massachusetts 97 Administration 97 Controls and Criteria 100 Assessment 102 Delaware 103 Administration 103 Controls and Criteria 105 Assessment 107 Other States With Selective Controls 107 Critical Areas 107 iii Page Wetland and Shoreland Laws. 109 Power Plant Siting 111 Statewide Criteria and Standards in Selected Areas. 111 Wisconsin 111 Administration 112 Controls and Criteria 113 Assessment 115 Florida 117 Administration 117 Controls and Criteria 119 Assessment 121 Summary - State Approaches to Land Use Control 122 The California Experience 128 Introduction 128 Cities and Counties 129 Authority 129 Planning 129 Zoning. 133 Open Space Planning 135 Subdivision of Land 135 Renewal and Redevelopment 139 Annexation 140 Program 140 General Planning Programs 140 Special Planning Programs 143 Preparation of Special Beach, Waterfront, or Coastal Plan 144 Adoption of Special Zoning Ordinances for the Coastal Zone 144 Preparation of Special Coastal Studies 146 Acquisition and Development 146 Outlook 146 Public Initiatives 147 Actions by Local and State Agencies 148 Regional Agencies 152 Bay Conservation and Development Commission 153 Authority 153 Program 154 Differences Between BCDC and the California Coastline Initiative 155 Tahoe Regional Planning Agency 158 Authority 158 Program 160 Differences Between the Tahoe Regional Agency and the California Coastline Initiative 161 iiii Page Ventura - Los Angeles Mountain and Coastal Study Commission 162 Authority 162 Program 164 Outlook 164 Local Agency Formation Commissions 165 Councils of Government 166 Authority 167 Program. 167 Outlook. 170 State Agencies 171 Office of Planning and Research 171 Council on Intergovernmental Relations/Office of Intergovernmental Management 175 State Lands Commission 176 Department of Parks and Recreation 178 Department of Navigation and Ocean Development 183 Department of Public Works 185 Department of Water Resources 188 Department of Fish and Game 190 Water Resources Control Board 192 Public Utilities Commission 193 Department of Conservation 196 Department of Public Health 197 Other 197 ANALYSIS OF INITIATIVE PROVISIONS. 199 What is the Coast? 201 Exclusion of Urban Areas 216 Effect on Comprehensive Planning 219 Effect on Public and Private Development 231 Representation of Local Areas 243 Lack of Uniformity 245 Administrative Problems 248 Fiscal Impact 251 Effect on Acquisition and Improvement of the Shoreline 254 Summary of Proposed Beach and Shoreline Expenditures to 1990 259 Conclusion 263 CONCLUSION 268 APPENDIX 276 Text of California Coastal Zone Conservation Act Initiative 1 COAP Summary - Coastal Land Use and Ownership 22 City of Long Beach Statistics for Initiative Permit Area 26 iiiii MAPS Page California State Park System 182 Initiative Planning and Permit Areas Los Angeles and Orange Counties 204 Permit Area as Defined by City of Long Beach 206 Difficulties with Definitions of "Planning Area" and "Permit Area" 210 Comparison of BCDC Permit Area with Initiative Permit Area for San Francisco Bay Area 212 Major Rivers and Waterways 213 Comparison of SCAG Boundaries with Initiative Regional Commission Boundaries 228 Comparison of ABAG Boundaries with Initiative Regional Commission Boundaries 229 iiiiii INTRODUCTION INTRODUCTION A National and State policy for land use planning and control is now emerg- ing. The basic premise of this policy is that land can no longer be treated sol- ely as a commodity to be used only at the discretion of a private owner. Rather, land is now being increasingly viewed as a scarce resource and de- cisions affecting its use are of public concern because they establish pat- terns which can have a significant and comprehensive impact on entire reg- ions, the State and the Nation. The control of land use is no longer viewed as the sole prerogative of local government. It is becoming increasingly recognized that land use decisions are a part of the larger public decision-making process and must be balanced against other broad public goals, whether they be social, economic or environmental. California voters will be presented in November with a statutory initiative which proposes to preserve California's coastal resources by severely limit- ing all forms of development. The Initiative proposes the creation of a Coastal Zone Conserva- tion Commission and six regional commissions to prepare a coastline plan for an irregular "Coastal Zone" and to closely regulate development activities by a permit system applied to a 3000 foot shoreline band as well as bays, estuaries and other areas subject to tidal action, including a 1000 foot strip up many rivers and waterways. Development as defined in the initiative is not limited. The term would include: Placement or erection of any solid material or structure; -1- Discharge or disposal of any dredged material gaseous, liquid or thermal waste extraction of any material; Change in density or intensity of use of land includ- ing lot splits; Change in the intensity of use of water; Alteration of the size of any structure Authority to grant permits for all forms of development is limited by stringent environmental criteria. Most authorities consider the question of land use as extremely complex and involving basic issues of property rights, the proper role and author- ity of local, state and federal governments, competing public goals, citi- zen representation, tax policies and maximizing resources for the greatest public benefit. The Initiative attempts to confront these issues by focusing on a single- purpose approach for resolving them on behalf of the highly desirable pub- lic goal of environmental preservation. But the question of how to best man- age California's coastal resources remains difficult to answer. Consequent- ly, the voter is being asked to decide some fundamental questions: How can California best manage its coastal resources for maximum public benefit? Is it desirable to further com- plicate public decision-making by adding to the confusing multiplicity of jurisdictions? Is there a better way to ensure that the important and critical questions are re- solved to the advantage of regional, statewide and nation- al interests rather than local parochial needs? -2- What perspectives are relevant to decisions relating to land management. Can they be better integrated into a comprehensive system which brings balance to the priori- ties of many functional programs and needs of different but related geographic areas? How can the needs of the environmental crisis be balanced against meeting the resource needs of other crises fac- ing our nation: energy, mass transportation, housing, unemployment, taxation and delivery of essential social services? What limitations should be placed upon individual prop- erty rights of ownership and use in order to achieve a stated "higher public goal"? Since limits on land sharp- ly affect value, what constitutes citizen grievances against "inverse condemnation" and "taking without com- pensation"? What are the effects of land use restrictions on the loc- al property tax base? How can revenue losses to local government and school districts be equalized or replaced? Will California's statewide interests be adequately re- flected in land use decisions by regional commissions? Will these decisions be in concert with essential state environmental improvement and resource planning programs now in process? These questions are of particular importance because of provisions contained in the Initiative which prohibit its repeal and effectively prevent its -3- amendment by the Legislature. Answers to questions such as those posed above are important because they provide some indication of the ability of the Initiative to assure addition- al preservation of California's environmental resources. However, they are also important because they indicate to what extent the Initiative will en- hance or detract from the goals and aspirations of all citizens regarding their quality of life in general. Because we are dealing with an increas- ingly complex and interrelated society each proposal for basic change, such as that represented by the coastal initiative, must be evaluated in terms of what it contributes to or detracts from the achievement of these social goals. The California Coastal Zone Conservation Act Initiative will be analyzed in subsequent pages. Prior to this, however, an overview of related legal is- sues and an insight into existing federal, state, and local activities in the coastal area is presented in order to indicate the legal and governmen- tal framework within which coastal programs are presently undertaken. -4- LEGAL THE LEGAL PERSPECTIVE LAND USE PLANNING GENERAL Land use planning is concerned principally with the physical environment. Its objective is to provide for the orderly use and development of land in the best interest of the public health, safety and welfare and to fac- ilitate the achievement of social and economic objectives, and the protec- tion of natural resources. Land use planning in the first half of the nineteenth century was almost entirely a function of local governments. The principal sources of land controls have been zoning and subdivision laws enacted under the police power. Other means of regulating land use include the power of eminent domain for acquisition of private land for public use, building and housing regulations, urban renewal and redevelop- ment laws. More indirectly, but of perhaps even greater importance are the effects of taxation, and annexation and incorporation laws on land use. In recent years, the extent of land use planning by other levels of govern- ment has grown greatly. National, state and regional involvement in land use planning is increasing rapidly and constitutes a major determinant of land use controls. A brief review of the authority of federal, state, and regional entities will provide a perspective within which to examine the legal powers and limitations with respect to the regulation of land develop- ment. NATIONAL LAND USE PLANNING Although the U.S. Constitution confers no expressed general power on Congress to regulate the use of private lands, the power of the federal government -5- over land use planning and development is extremely broad. Article IV, Sec- tion 3, cl. 2 of the Constitution states that, "The Congress shall have pow- er to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States The term "territory" includes lands, and the power of Congress to control federal lands is unlimited. United States V. Gratist, 39 U.S. (14 Pet.) 526 (1840). Authority of Congress over federally owned lands has been a principal factor in determining land use since approximately one-third of the land in the United States is owned by the federal government. Federal policy with re- spect to public lands had a strong influence on early planning and develop- ment of local communities. The basic grid system of the early federal land survey was followed in local planning. Federal land grants to promote devel- opment of roads and railroads, disposition of lands under the Homestead Act of 1862, and now the management of federal lands by such agencies as the Bur- eau of Land Management, U.S. Forest Services, Bureau of Reclamation, National Park Service, and the Federal Power Commission have had a major impact on land use planning and development. Principal federal impact on land use has resulted from federal grant and loan programs to encourage state, regional and local planning, such as those pro- grams under the Department of Housing and Urban Development, the several fed- eral housing acts, transportation acts, highway acts, air and water quality acts, and federal urban renewal assistance acts. Authority of Congress in such areas derives principally from the general welfare clause, Article 1. Sec. 8, cl. 1 of the U.S. Constitution, which states that, "The Congress shall have power to lay and collect taxes, duties, imports and excises, to pay the debts and provide for the common defense and general welfare of the United States." This power is analagous to the general police power of the states. -6- Other matters may be regulated by the federal government under the express powers given to Congress over commerce (Art. I, Sec. 8, cl.1) and defense (Art. I., Sec. 8, cl.11-16). Validly enacted federal laws supercede or pre-empt local laws which are in conflict. Article 6, cl.2 of the Constitution, the "supremacy clause", pro- vides that the Constitution and the laws of the United States which are made in pursuance thereof constitute the supreme law of the land. Therefore, the provisions of a state law are invalid to the extent they are in conflict with applicable federal law. On the other hand, state sovereignty is protec- ted by the Tenth Amendment which provides that the powers not delegated to the federal government, nor prohibited by the Constitution to the states, are reserved to the states, or to the people. There is an increasing interest in development of a national land use policy. There are presently more than 200 bills before Congress relating to land use policy. Over the last several years Congress has developed numerous widely- differing programs and authorizations for land planning, management, and de- velopment. Title VIII of The Intergovernmental Cooperation Act of 1968 con- tains the Federal Urban Land Use Act, which requires federal agencies to coordinate land acquisition, disposal, and change of use in urban areas with local plans. The provisions of this Act are significant in determining whether state planning legislation is applicable to federal agencies within the planning area. An example of land use policy likely to be enacted by Congress in the near future, is S. 632 authored by Senator Henry M. Jackson. The bill establishes national land use goals and priorities and requires states to prepare state- wide land use plans. Such statewide plans must meet specified criteria and -7- guidelines. States may delegate to local governments planning and implemen- tation subject to the states' responsibility for approval and coordination of local plans and enforcement procedures. The state plan is subject to federal review and must be consistent with the guidelines contained in the Act. The bill provides for termination of grants available under the bill when land use programs fail to gain federal approval, and further provides for loss by the state of airport funds, highway funds, land and water conservation funds, and other grants-in-aid for failure to have an approved land use program. It appears clear that the California Coastal Zone Conservation Commission and the regional commissions proposed to be created by Proposition No. 20 on the November 1972 California general election ballot would not meet the proposed guidelines for a comprehensive state planning agency, nor comply with the cri- teria set forth in the proposed federal act. STATE LAND USE PLANNING AND REGULATION Primary responsibility and constitutional authority for land use planning and control rests in the state by reason of its police power. Even in those states which grant to cities and counties constitutional home rule, the grant of pol- ice power is subject to the states' superior police power, and authority of charter cities over municipal affairs is offset by the states' power over mat- ters which are of "statewide concern". There would seem to be little ques- tion that preservation of the coastal shoreline and access to the ocean, reg- ulation of water quality, air pollution, and the like are matters of statewide concern. In the case of offshore lands, Congress relinquished to the states all rights of the United States to "lands beneath navigable waters", including those lands within three miles seaward from the coastline of each state, by passage -8- of the Submerged Lands Act in 1953. The definition of "coastal zone" in the California Initiative includes lands beneath navigable waters as defined in the Federal Act. The Submerged Lands Act reserves to the United States, however, all rights of the United States under its constitutional authority to regulate or improve navigation, to provide for flood control, or the pro- duction of power. (43 U.S. C.A. 1311(d).) The Act also provides that the United States retains all its rights and powers of regulation and control of such lands and navigable waters for the "constitutional purposes of com- merce, navigation, national defense, and international affairs, all of which shall be paramount to, but shall not be deemed to include, proprietary rights of ownership, or the rights of management, administration, leasing, use, and development of the lands and natural resources 11 vested in the states. (43 U.S.C.A. 1314) Historically, states have delegated to cities and counties zoning authority and authority to regulate divisions of land, reserving to itself limited pow- ers in these areas. Similarly, cities and counties are authorized to enact housing authorities and community redevelopment agencies. The reservoir of power rests in the state, however. In California, cities and counties are re- quired to enact general plans containing specified components and to enact zoning ordinances which must be consistent with those plans. The state pre- scribes the form, powers, and duties of local redevelopment agencies and hous- ing authorities. It enacts statewide building and housing regulations with which local regulations must conform (with some provision for variance), and the scope of authority of cities and counties over the subdivisions is limit- ed by the State Subdivision Map Act, which is a grant of authority, rather than a limitation on local authority. There is an increasing involvement of states in land use control. A growing -9- number of states have adopted statewide land use plans since Hawaii led the way in 1961. As indicated above with respect to federal legislation, it ap- pears likely that every state will be required to have a statewide land use plan and to exercise a greater degree of control over actual land use, con- sistent with a national land use policy. A discussion of the functions of California state agencies having direct and indirect responsibility for land use planning and regulation is discussed elsewhere in this report. An important provision of the California Constitution in Article XV, Sec. 2, provides: "No individual, partnership or corporation, claiming or possessing the frontage or tidal lands of a harbor, bay, inlet, estuary, or other navigable water in this State, shall be permitted to exclude the right of way to such water whenever it is required for any pub- lic purpose, nor to destroy or obstruct the free navigation of such water; and the legislature shall enact such laws as will give the most liberal construction to this provision, so that access to the navigable waters of the State shall be always attainable for the people thereof." The legislature has enacted legislation which provides that no city or coun- ty shall approve a subdivision fronting upon the coastline or shoreline, or upon any lake or reservoir which is owned in part or entirely by any public agency unless there is reasonable public access to such waters. (Business and Professions Code S 11610.5, 11610.7.) REGIONAL AND METROPOLITAN PLANNING Planning agencies that have less than statewide jurisdiction are frequently referred to as "regional" agencies. In some cases such area-wide planning -10- agencies are established by the state, and in others they are authorized by the state. More frequently, such agencies are formed by agreement between local governmental entities and financially supported by the member agencies in the planning area. Almost every state authorizes regional planning. The creation of regional planning entities and councils of government has been given impetus by federal aid programs which require review and approval by such regional bodies. Few such regional agencies have been given much regulatory power. Their power and authority is that granted to them by the state legislature, or that denied from the agreement or contract between participating entities and lim- ited by the common power which they share. In either case, the scope of their authority and power is that delegated by the state. In California, there are agencies which exercise regulatory power on a regional basis, such as the San Francisco Bay Conservation and Development Commission (Government Code S 66600, et seq), and the Metropolitan Transportation Commission (Government Code S 66500, et seq). State statutes also provide for area planning commissions (Government Code S 65600, et seq), planning districts consisting of two or more counties (Government Code S 66100, et seq), and regional planning dis- tricts (Government Code S 65060, et seq). Councils of Government such as the Association of Bay Area Governments and the Southern California Association of Governments have been created pursuant to the Joint Exercise of Powers Act (Government Code S 6500, et seq), which provides that two or more public agencies by agreement may jointly exercise any power common to the contract- ing parties. The Attorney General has ruled that such joint powers agencies may not exercise zoning authority (Office of the Attorney General, indexed letter, October 13, 1970). There has been no court decision expressly clari- fying whether basic legislative powers such as the taxing power may be exer- cised by the joint entity. -11- It is clear that there is a trend toward regional planning and to some ex- tent regional regulatory agencies exercising powers pursuant to a statutory grant of power by the state legislature. POLICE POWER BASIC POLICE POWER The term "police power" denotes the power of government in every sovereignty; it is an inherent attribute of sovereignty, necessary to the conduct and maintenance of government (McQuillin, Mun. Corp. 3d Ed. S 24.02). Essentially, the police power is the power of government to regulate the conduct of its citizens and the manner in which they use their property. It is inseparable from legislative power and must be exercised by a legislative body or by the electorate, all legislative power being vested by the Constitution in the people or the legislature. The United States, as a government of enumer- ated powers, has no inherent general police power. The police power is re- served to the states. (Hamilton V. Kentucky Distilleries and Warehouse Co., 251 U.S. 146.) The federal government in the exercise of its express powers ex- ercises police power as an incident thereto, even though the exercise of such power constitutes an apparent invasion of the states' police power. The pol- ice power is not susceptible of definition (Stone V. Mississippi, 101 U.S. 814); it is not rigid and fixed, but flexible. It is the broadest of governmental power, affecting all matters relating to the public health, safety, conven- ience, order, morals, and general welfare. A characteristic of the police pow- er is that it is a reasonable assertion of public over private interests. Its lawful exercise necessarily interferes with individual rights. The right of an owner of property to use it as he chooses is subject to the pol- ice power. There are limitations on the exercise of the police power discussed more ful- 1y below. It may not be exercised arbitrarily and must be exercised for a -12- valid public purpose, and the means must be reasonably related to the achieve- ment of that legitimate objective. The test is one of public necessity and reasonableness. Its exercise must operate uniformly and without arbitrary or abusive discrimination. It is only when exercise of the police power is arbitrary, unreasonable, or an improper use that it becomes an invasion of constitutional rights. California Constitution Article II, Sec. 7 provides: "A county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in con- flict with general laws." Just as the state police power is subject to the paramount authority of the United States Constitution, municipal police power is also subject to the supremacy of state legislation. The police power includes the power to zone, regulate subdivisions, regulate building and housing, abate nuisances, and prevent and regulate air and wat- er pollution. Land use control generally involves an exercise of the police power. ZONING Zoning is an exercise of the police power which is inherent in each state. States by and large have delegated the power to zone to cities and counties. The California legislature has done so in Government Code S 65800. Local zoning is probably authorized under the general grant of police power to cities and counties. (Brougher V. Bd. of Public Works, 205 Cal. 426.) Zon- ing power may be exercised by a charter city under its constitutional power over "municipal affairs". (Const. Art. XI, Sec. 5.) Whether or not a matter -13- is a municipal affair or a matter of statewide concern subject to the gener- al law is determined by the courts. (Bishop V. City of San Jose, 1 Cal. 3d. 56.) The zoning provisions of the Government Code expressly excepted charter cities from their application unless adopted by the city (Government Code S 65803) until recently. Certain procedural requirements are now expressly applicable to charter cities. Zoning is exercised for a number of different purposes. The California stat- utes contain no statement of purposes for which the zoning power may be exer- cised. A municipality does not have to support its zoning action by proving a legitimate public purpose. There is a presumption of validity of the leg- islative action and, except in rare cases, the courts will not question the Purpose so long as reasonable. Zoning may be exercised to provide for orderly growth of the community, to provide for proximity of compatible uses, to control traffic congestion, to maintain property values, to serve aesthetic purposes, to regulate density and prevent overcrowding, to provide for open space, to increase the property tax base, and to provide neighborhood social and economic stability. Zoning has been upheld even though property values may be diminished (Hamer V. Ross, 59 Cal. 2d. 776). The effect of zoning on a particular parcel is generally not determinative of its validity. Complete elimination of the value of property as a result of zoning may be valid if for a legitimate public purpose. (Consolidated Rock Products Co. V. Los Angeles, 57 Cal. 2d. 515.) This however raises the problem of inverse condemnation (see Page 20). Zoning is a tool for implementation of the general plan and must be "consistent" with the general plan. (Government Code S 658860.) The purposes of zoning then may be more readily seen in terms of the contents and requirements of the general plan. There are limitations on zoning. "Spot zoning" is invalid where a parcel of -14- land is singled out for special treatment, or where the zoning is for the bene- fit of the landowner rather than the public interest generally. "Spot zon- ing" out low income housing has been held invalid. (G & D Holland Construc- tion Co. V. Marysville, 12 Cal. 3d. 989.) A number of cases in several states have invalidated zoning ordinances which did not provide for apartment dwel- lings, as a violation of the Equal Protection, on the ground that the effect of the zoning was to exclude one or more classes of persons. (In re Ginsh, 263 A. 2nd. 395 (pa.)). Similarly, some cases have held that a zoning ordi- nance requiring minimum lot sizes of two and three acres was invalid. (Ap- peal of Kit-Man Builders; Inc. (1970), 268 A. 2nd. 765 (pa.)). Other cases on similar facts have upheld the validity of zoning ordinances restricting or limiting permissible uses, and questions of large-lot zoning and other alleged "exclusionary" provisions have not been settled. It is clear that zoning ordinances must constitute a reasonable exercise of the police power to achieve a legitimate public objective. SUBDIVISION REGULATIONS Regulations of subdivisions is a land use control based on the police power. Zoning and regulation of subdivisions are the principal land use controls ex- ercised by state and local governments. Like zoning, subdivision regulation is a tool for implementing planning. Recently enacted legislation in Calif- ornia requires that subdivisions be consistent with applicable general and specific plans. (Business and Professions Code S11526, 11549.5.) Subdivi- sion regulation is related to zoning but serves a different purpose. Zoning regulates the uses to which. property owners may develop their property, where- as subdivision regulations are concerned with whether property should be di- vided, the manner in which it should be divided, and the exactions which should be imposed with respect to the total property as conditions of approval of -15- the subdivision. The power to regulate subdivisions is based in part on the theory that re- quirements may be imposed in exchange for the privilege of the subdivider to develop land for his own benefit. Conditions imposed on the subdivider are based principally on the need for public facilities and improvements created by the subdivision and which would otherwise fall as a burden on the rest of the community. Therefore, most state subdivision statututes have long author- ized subdivision ordinances to require dedications and improvement of streets and utilities. The trend is to acquire additional exactions such as dedica- tion of lands for school sites and parks, or the payment of fees in lieu of the dedications. In California the State Subdivision Map Act (Business and Professions Code S11500 et seq.) authorizes cities and counties to regulate the "design" and "improvement" of subdivisions and divisions of land which are not defined as subdivisions so long as such regulations are not more restrictive than the re- quirements for a subdivision. The Act is a grant of authority and cities and counties may impose only those conditions for approval of subdivisions which are authorized by the state act (Kelber V. City of Upland, 155 C.A. 2d 631). Recent amendments to the Subdivision Map Act have substantially broadened the authority of local government to disapprove or conditionally approve divisions of land. Definitions of "design" and "improvement" have been expanded to in- clude "such specific requirements in the plan and configuration of the entire subdivision (and the installation of such specific improvements) as may be necessary or convenient to insure conformity to or implementation of applicable general or specific plans---". The constitutionality of the statutory author- ization and a local ordinance imposing a requirement for dedication of park- land or the payment of fees in lieu thereof was upheld in the California -16- SUMMARY OF INITIATIVE Supreme Court (hearing denied by the U.S. Supreme Ct.) in the case of Associa- ted Homebuilders V. City of Walnut Creek, 4 C.A. 3d 645 (1971). The subdivision map must be disapproved if the local legislative body deter- mines that the proposed subdivision is not consistent with applicable plans, that the site is not physically suitable for the type or density of develop- ment, that the design and improvements are likely to cause substantial en- vironmental damage or serious public health problems, or conflict with public easements for access. The extent of the authority implicit in the latest amendments of the sub- division statutes has not been clearly defined and will undoubtedly be tested in the courts. It is clear, however, that the relationship between subdivision regulation and planning has been greatly strengthened. The validity of both zoning and subdivision regulations are now measured largely by their consis- tency with the provisions of comprehensive general plans. Unfortunately, the planning procedure contained in the coastal zone initiative does not pro- vide for consistency between the coastal zone plan to be adopted and the cor- responding general plans of cities and counties. Elements of the coastal zone plan may well be contrary to corresponding elements of local plans with the result that development may be denied because it is inconsistent with one of the plans although consistent with the other. The problem illustrates the need for development of comprehensive land use planning, in which the elements of local plans are consistent with the corresponding elements of regional or statewide plans. BUILDING AND HOUSING CODES Building regulations are an exercise of the police power and subject to the same constitutional limitations as other exercises of the police power. Per- mits may be required before any construction is permitted and reasonable conditions -17- may be attached to the issuance of such permits. Conditions which may be validly imposed are lot line set back requirements, minimum lot size, street or highway access, off-street parking, and the dedication of rights-of-way where reasonably related to the use of the property. (Southern Pacific Co. V. City of Los Angeles, 242 C.A. 2d 38.) Issuance of a building permit may not be arbitrarily denied. The general rule is that the applicant is entitled to the permit as a matter of right if he complies with the applicable statutory and code requirements. It is settled, however, that a reasonable fee may be imposed for issuance of the permit and reasonable conditions imposed as indicated above. The California State Housing Law requires the State to adopt rules and regu- lations imposing the same requirements as contained in specified uniform national codes. Cities and counties must adopt regulations imposing the same requirements as those adopted by the State, except that they may make such changes or modifications as they expressly find to be necessary because of local conditions. Building codes, although not a land use control as such, are related to plan- ning, zoning and subdivision regulations. Building permits may be denied for failure of the applicant to comply with applicable zoning and subdivision requirements. An example of this is Government Code Sec. 65567 which pro- vides that no building permit may be issued and no subdivision approved un- less the proposed construction or subdivision is consistent with the local open space plan. INITIATIVE AND REFERENDUM Article IV, Section 1, of the California Constitution reserves to the people the powers of initiative and referendum. The initiative is the power of the -18- electorate to enact statutes, ordinances and amendements to the Constitution. The referendum is the power of the electorate to nullify or reject statutes and ordinances or parts thereof following their enactment, with specified exceptions. Initiative and referendum powers may be exercised by the electors of cities and counties, and the procedure for general law cities is prescribed by the legislature. The initiative and referendum apply to matters which are legislative in char- acter and clearly include exercise of the police power. Exercise of the ini- tiative by the local electorate is restricted to legislation which is within the power of the local legislative body to enact. Recent cases have held that the initiative may be used to amend zoning ordinances, although an older state supreme court case holds to the contrary. The California Constitution provides that an initiative statute becomes ef- fective the day after the election unless the measure provides otherwise, and that the legislature may amend and repeal an initiative statute by another statute only when approved by a vote of the people unless the initiative statute permits amendment or appeal without their approval. The coastal zone initiative authorizes the legislature by a two-thirds vote to amend the act in order to better achieve the objectives stated therein, but it does not authorize repeal of the act without a vote of the people. A statute or ordinance enacted by initiative is subject to the same constitu- tional requirements as a statute ordinance enacted by a legislative body. It must yield to conflicting provisions of the State and U.S. Constitutions. CONSTITUTIONAL LIMITATIONS The police power is limited by constitutional guarantees. It must not violate -19- provisions of the United States Constitution or conflict with valid federal laws. A reasonable exercise of the police power, however, does not violate constitutional provisions even though it may interfere with individual per- sonal and property rights. The principal constitutional guarantees against which state laws regulating land use must be balanced are the provisions of the Fifth and Fourteenth Amendments that no person shall be deprived of life, liberty or property with- out due process of law, nor private property be taken for public use without just compensation, and the equal protection provisions of the Fourteenth Amendment. The California Constitution contains contains similar guarantees. The California Constitution provides that private property shall not be taken or damaged for public use without payment of just compensation. Unintended physical injuries to private property may then result in inverse condemnation in violation of the "or damaged" clause of the California Constitution. A possibility of preemption is raised by the provisions of both the United States and California Constitutions that the U.S. Constitution and the laws enacted pursuant thereto are the supreme law of the land. POLICE POWER V. INVERSE CONDEMNATION The initial question is whether there is a "taking" of private property for a public use. An exercise of the police power to regulate or restrict the use and enjoyment of land is not compensable. It is only when government action constitutes a "taking" that the power of eminent domain is involved and com- pensation is required to be paid. The courts have used various theories to determine whether application of a statute constituted a taking. Short of an actual physical invasion of the property, there is no precise formula to determine where regulation ends and taking begins. -20- A municipal zoning ordinance prohibiting rock and gravel operations on the plaintiffs property was upheld oven though the court found that the property had no appreciable economic value for any other purpose. It held that the zoning ordinance was a proper exercise of the police power in fur- therance of the best interests and general welfare of the community. (Con- solidated Rock Products Co. V. City of Los Angeles, 57 C. 2d 515.) In Candlestick Properties, Inc. V. San Francisco Bay Conservation and Develop- ment Commission, 11 C.A. 3d 557, the Court of Appeal affirmed a judgement denying the plaintiff a right to fill a parcel of land, holding that the restrictions placed on the use of the land were a valid exercise of the police power and not a taking of property without just compensation. The Court, citing the Consolidated Rock case, stated, "It is a well settled rule that determination of the necessity and form of regulations enacted pursuant to the police power is primarily a legislative and not a judicial function, and is to be tested solely by the answer to the question, is there any reason- able basis in fact to support the legislative determination of the regula- tion's wisdom and necessity?" (11 C.A. 3d 557, 571.) The Court held that the statutes defining the public interest in protecting the bay establish a rational basis for the legislation, and held that, while "an undue restriction on the use of private property is as much a taking for constitutional pur- poses as appropriating or destroying it," that refusing to allow the property owner to fill his land was not an undue restriction. The Court applied a "balancing test" and found that the public interest was paramount. By comparison, in Bartlett V. Zoning Commission, (2 E.R.C. 1684 (1971)), the plaintiff was a private landowner challenging the constitutionality of Con- necticut's coastal zoning regulations on the grounds that they were so restric- tive that they rendered his lands commercially valueless. He had acquired -21- the land with an intention of filling, but new zoning ordinances forbidding all filling activities were passed soon after his purchase. He then filed suit in the Connecticut Court of Common Pleas for relief from the town Zoning Commission's amendment of the regulations, claiming that these measures were a confiscation of his land without just compensation. Both the trial court and the Connecticut Supreme Court held that the zoning regulations amounted to a taking of plaintiff's property in violation of his constitu- tional rights. The higher court acknowledged that perservation of the en- vironment with its ecological, healthful, aesthetic and economic benefits was a laudable objective for the ordinances, but noted that the objective it- self was not in issue. The important questions, as the state Supreme Court saw it, was whether this objective could be accomplished in such a manner. Since these regulations left the landowner with no reasonable commercial use for his property, the court concluded that the land was rendered practically worthless. The court also noted that although the state legislature had recognized the importance of environmental preservation, the latter had made no provision for reasonable compensation in cases where takings were necessary. The court therefore con- cluded that the extreme restrictions of the zoning regulations were an un- reasonable and arbitrary exercise of police power, and thus were confiscatory and unconstitutional. Restrictions imposed with the intent to prevent any increase in the cost of acquisition of lands intended to be acquired or purchased at a later date were held to be unreasonable in Peacock V. County of Sacramento, 271 C.A. 2d 845. In an inverse condemnation action against the county, the court found that a "taking" occurred, where the county, in contemplation of acquiring a private airport for public use, had adopted a height restriction ordinance, rezoned -22- the property to a more restrictive zone designed for use in airport approach areas, and adopted a general plan for development of the airport. The ef- fect was to essentially freeze development of the plaintiff's property. The Peacock case suggests that certain plans may become, in fact, regulations with consequent legal effects, including inverse condemnation. PRE-EMPTION State statutes are invalid if superceded by federal law or attempt to regu- late subject matter over which the federal government has pre-empted the field. It is clear that a state law in direct conflict with a valid federal statute must yield under the supremacy clause of the U.S. Constitution. State statutes may also be pre-empted, although not in direct conflict with federal law, if the federal government has fully occupied the field of regu- lation. Whether or not a federal law leaves no room for state regulation must be determined in light of the whole federal statute and evidence of Congressional intention to occupy the field. State laws may be invalidated where the scheme of federal legislation is SO pervasive as to give rise to a reasonable inference that Congress left no room for the states to supple- ment it, or where the state law presents a serious danger of conflict with the administration of a federal program pursuant to federal legislation cov- ering the same subject matter (Pennsylvania V. Nelson, 350 U.S. 497, 100 L. Ed. 640). Whether or not a state law is in conflict with federal law is not easily determined. Although not invalid on its face, a state regulation may be held to be invalid as applied to a particular situation in which federal law con- trols. SUMMARY The California coastal zone initiative represents an exercise of the state's -23- police power through the initiative power reserved to the people by the Calif- ornia Constitution. It provides for the creation by statute of a state com- mission and six regional commissions to prepare a plan for regulation of the use of the coastal zone. It provides further for a permit procedure and approval of development within the defined zone during the period of pre- paration of the plan. As an exercise of the state's police power, it is sub- ject to Constitutional limitations in its application. Whether or not one or more of its provisions violates Constitutional due process or property rights can be answered only in terms of the application of such provision to a given factual situation. In some situations, it is clear that the pro- visions of the statute cannot apply to matters which will be subject to fed- eral regulation. A principal characteristic of the proposal is that it provides for a separ- ate plan for a limited area in which development must be consistent with its provisions. It creates a conflict with other provisions of law which re- quire the enactment of general plans with specified elements and require zon- ing and subdivision regulations to be consistent therewith. Questions of inverse condemnation will undoubtedly arise with respect to application of the permit provisions to particular lands and uses. An unfortunate part of the initiative process is that it leaves no room for amending and clarifying provisions of the measure after it is filed and prior to enactment. Portions of the measure are ambiguous and will probably lead to litigation. An example is the language of proposed section 27404 relating to prior vested rights. A reading of the language of that section can be construed to provide that restrictions of the measure are applicable to per- sons who have in fact, under the law, acquired vested rights under a valid building permit issued subsequent to April 1, 1972. -24- SUMMARY OF THE CALIFORNIA COASTLINE INITIATIVE Responsibility for land use regulation and control in California is shared between various levels of government, although local government continues to assume primary responsibility for the regulation of all land other than that owned by State and Federal agencies. The California Coastline Initiative would change the existing method of regu- lating land use through the creation of a statewide California Coastal Zone Conservation Commission and six regional commissions. The statewide and reg- ional commissions would be responsible for developing and submitting to the Legislature for consideration by December 1, 1975, a California Coastal Zone Conservation Plan. In addition, they would inherit strong new regulatory con- trol over essentially all development within a coastal permit area during the time that the California Coastal Zone Conservation Plan is being prepared. Because of the significance of the proposals contained in the initiative, a detailed summary of its major provisions has been prepared. SUMMARY OF PROVISIONS If adopted, the California Coastline Initiative would add a new level of plan- ning and land use regulation to the existing governmental framework. That is, cities and counties would continue to plan and make recommendations for land use within their respective boundaries. However, implementation of their plans and specific land use decisions would be conditioned on the additional approval of the regional and, in some cases, a statewide California Coastal Zone Conser- vation Commission. WHO WOULD SERVE ON THE COMMISSIONS? The statewide California Coastal Zone Conservation Commission would consist of -25- twelve (12) members. Six would represent, and would be selected by, the reg- ional commissions. The remaining six members would represent the public, and they would be appointed equally by the Governor, the Senate Rules Committee, and the Speaker of the Assembly. Membership of the six regional commissions would be, as follows: 1. North Coast Regional Commission (Del Norte, Humboldt, and Mendocino Counties) Six city and county officials (one city councilman and one supervisor from each county) Six public representatives 2. North Central Coast Regional Commission (Sonoma, Marin, and San Francisco Counties) Seven city and county officials (one city councilman and one supervisor from Sonoma and Marin Counties; two sup- ervisors from the City and County of San Francisco; one city councilman or supervisor from the Association of Bay Area Governments) Seven public representatives 3. Central Coast Regional Commission (San Mateo, Santa Cruz, and Monterey Counties) Eight city and county officials (one city councilman and one supervisor from each county; one city councilman or super- visor from the Association of Bay Area Governments; one -26- city councilman or supervisor from the Association of Monterey Bay Area Governments) Eight public representatives 4. South Central Coast Regional Commission (San Luis Obispo, Santa Barbara, and Ventura Counties) Six city and county officials (one city councilman and one supervisor from each county) Six public representatives 5. South Coast Regional Commission (Los Angeles and Orange Counties) Six city and county officials (one supervisor from each county; one city councilman from the City of Los Angeles; one city councilman from Los Angeles County from a city other than Los Angeles; one city councilman from Orange County; one city councilman or supervisor from the South- ern California Association of Governments) Six public representatives 6. San Diego Coast Regional Commission (San Diego County) Six city and county officials (two supervisors from San Diego County; two city councilmen from San Diego County, at least one of whom shall be from a city which lies within the per- mit area; one city councilman from the City of San Diego; one member of the San Diego Comprehensive Planning Organiza- tion) -27- Six public representatives Supervisors on the regional commission would be appointed by their respective Board of Supervisors, representatives of regional planning agencies would be appointed by their respective agency and, unless indicated otherwise, city councilmen would be appointed by the city selection committee in their respec- tive county. As with the statewide commission, public representatives on the regional com- missions would be selected by the Governor, the Senate Rules Committee, and the Speaker of the Assembly. With respect to public members, the initiative specifically provides, as follows: "Each public member of the commission or of a regional commission shall be a person who, as a result of his training, experience, and attainments, is exceptionally well qualified to analyze and interpret environmental trends and information, to appraise re- source uses in light of the policies set forth in this division, to be responsive to the scientific, social, esthetic, recreational, and cultural needs of the state. Expertise in conservation, rec- reation, ecological and physical sciences, planning, and education shall be represented on the commission and regional commissions." The initiative provides that all members of the state and regional commissions must be appointed by December 31, 1972. The first meeting of the regional com- missions would be held no later than February 1, 1973, and the first meeting of the state commission would be held no later than February 15, 1973. Member: of the regional and state commissions would receive no compensation for their services other than actual and necessary expenses. In addition, members who are not employees of other public agencies would receive $50 for each full day -28- of actual meetings of either the state or regional commission. WHAT WOULD THE COMMISSIONS DO? The principal responsibility of the state commission would be to prepare, by December 1, 1975, a California Coastal Zone Conservation Plan for considera- tion by the Legislature. The state commission would also hear appeals regard- ing decisions of regional commissions to approve or deny a permit for develop- ment within the permit area. Regional commissions, in cooperation with local agencies, would be responsible for preparing and submitting recommendations for the California Coastal Zone Conservation Plan to the state commission no later than April 1, 1975. The recommendations from regional commissions must include "areas that should be reserved for specific uses or within which specific uses should be prohibited." In addition, regional commissions, on and after February 1, 1973, would be res- ponsible for issuing permits authorizing development within a prescribed "per- mit area." Both statewide and regional commissions would be required to meet at least once a month. They would each elect a chairman and appoint an executive director, and would be authorized to employ additional staff and contract for necessary professional services. In addition, any federally recognized regional planning agency would be required to provide staff assistance to the regional commission within its region "insofar as its resources permit," and the staff and budget of the California Comprehensive Ocean Area Plan (presently under the jurisdic- tion of the State Department of Navigation and Ocean Development) would be as- signed to the state commission. The initiative provides that a total of $5 million shall be allocated for operation of the state and regional commissions during fiscal years 1973 to 1976. -29- WHAT IS THE NATURE OF THE CALIFORNIA COASTAL ZONE CONSERVATION PLAN? As indicated, the principal responsibility of the state commission is to pre- pare a California Coastal Zone Conservation Plan for consideration by the Leg- islature. The initiative defines the coastal zone, as follows: "The Coastal zone means that land and water area of the State of California from the border of the State of Oregon to the border of the Republic of Mexico, extending seaward to the outer limit of the state jurisdiction of the state, and extending inland to the highest elevation of the nearest coastal mountain range, ex- cept that in Los Angeles, Orange, and San Diego Counties, the in- land boundary of the coastal zone shall be the highest elevation of the nearest coastal mountain range or five miles from the mean high tide line, whichever is the shorter distance." Because the landward boundaries of the coastal zone are related to the mean high tide line of the "sea," this term is also defined in the initiative: "Sea means the Pacific Ocean and all the harbors, bays, chan- nels, estuaries, salt marshes, sloughs, and other areas sub- ject to tidal action through a connection with the Pacific Ocean, excluding nonestuarine rivers and creeks." The initiative provides that the coastal zone plan shall be "based upon de- tailed studies of all the factors that significantly affect the coastal zone," and that it shall be consistent with the following objectives: (a) The maintenance, restoration, and enhancement of the over- all quality of the coastal zone environment, including, but not limited to, its amenities and aesthetic values. -30- (b) The continued existence of optimum populations of all species of living organisms. (c) The orderly, balanced utilization and preservation, con- sistent with sound conservation principles, of all liv- ing and nonliving coastal zone resources. (d) Avoidance of irreversible and irretrievable commitments of coastal zone resources. In addition to the objectives listed above, the initiative also provides that the coastal zone plan shall contain at least the following elements: (a) A precise, comprehensive definition of the public interest in the coastal zone. (b) Ecological planning principles and assumptions to be used in determining the suitability and extent of allowable de- velopment. (c) A component which includes the following elements: (1) A land-use element. (2) A transportation element. (3) A conservation element for the preservation and manage- ment of the scenic and other natural resources of the coastal zone. (4) A public access element for maximum visual and physical use and enjoyment of the coastal zone by the public. (5) A recreation element. (6) A public services and facilities element for the general location, scale, and provision in the least environment- ally destructive manner of public services and facilities in the coastal zone. This element shall include a power -31- plant siting study. (7) An ocean mineral and living resources element. (8) A population element for the establishment of maximum desirable population densities. (d) Reservations of land or water in the coastal zone for certain uses, or the prohibition of certain uses in specific areas. (e) Recommendations for the governmental policies and powers re- quired to implement the coastal zone plan including the or- ganization and authority of the governmental agency or agencies which should assume permanent responsibility for its implementa- tion. HOW WOULD THE INTERIM PERMIT PROCEDURE WORK? GENERAL PROVISIONS During the time that the California Coastal Zone Conservation Plan was being prepared, regional commissions would be granted broad regulatory authority over development in a prescribed "coastal permit area," which is defined, as follows: "Permit area means that portion of the coastal zone lying between the seaward limit of the jurisdiction of the state and 1,000 yards landward from the mean high tide line of the sea subject to the following provisions: (a) The area of jurisdiction of the San Francisco Bay Conservation and Development Commission is excluded. (b) If any portion of any body of water which is not subject to tidal action lies within the permit area, the body of water -32- together with a strip of land 1,000-feet wide surrounding it shall be included. (c) Any urban land area which is (1) a residential area zoned, stab- ilized and developed to a density of four or more dwelling units per acre on or before January 1, 1972; or (2) a commercial or in- dustrial area zoned, developed, and stabilized for such use on or before January 1, 1972, may, after public hearing, be excluded by the regional commission at the request of a city or county with- in which such area is located. An urban land area is "stabilized" if 80 percent of the lots are built upon to the maximum density or intensity of use permitted by the applicable zoning regulations existing on January 1, 1972. Tidal and submerged lands, beaches, and lots immediately adjacent to the inland extent of any beach or of the mean high tide line where there is no beach shall not be excluded. Orders granting such exclusion shall be subject to conditions which shall assure that no significant change in density, height, or nature of uses occurs. An order granting exclusion may be revoked at any time by the reg- ional commission, after public hearing. All persons (any individual, organization, partnership, and corporation, in- cluding any utility and any agency of federal, state, and local government) would be subject to these additional permit requirements with respect to es- sentially any proposed "development" within the permit area. The initiative defines development in the following broad, all-encompassing terms: "Development means, on land, in or under water, the placement -33- or erection of any solid material or structure; discharge or dis- posal of any dredged material or of any gaseous, liquid, solid, or thermal waste, grading, removing, dredging, mining, or extrac- tion of any materials; change in the density or intensity of use of land, including, but not limited to, sub-division of land pur- suant to the Subdivision Map Act and any other division of land, including lot splits; change in the intensity of use of water, ecology related thereto, or of access thereto, construction, re- construction, demolition, or alteration of the size of any struc- ture, including any facility of any private, public, or municipal utility, and the removal or logging of major vegetation. As used in this section, "structure" includes, but is not limited to, any building, road, pipe, flume, conduit, siphon, aqueduct, telephone line, and electrical power transmission and distribution line." More specifically, the initiative provides that "on or after February 1, 1972, any person wishing to perform any development within the permit area shall ob- tain a permit authorizing such development from the regional commission and, if required by law, from any city, county, state, regional or local agency." No permit shall be issued unless the regional commission has first found both of the following: (a) That the development will not have any substantial adverse environmental or ecological effect. (b) That the development is consistent with the objectives of the initiative. In addition, the initiative provides that all permits shall be conditioned in order to ensure that: -34- (a) Access to publicly owned or used beaches, recreation areas, and natural reserves is increased to the maximum extent pos- sible by appropriate dedication. (b) Adequate and properly located public recreation areas and wildlife preserves are reserved. (c) Provisions are made for solid and liquid waste treatment, dis- position, and management which will minimize adverse effects upon coastal zone resources. (d) Alterations to existing land forms and vegetation, and construc- tion of structures shall cause minimum adverse effect to scenic resources and minimum danger of floods, landslides, erosion, sil- tation, or failure in the event of earthquake. The issuance of a permit would require the affirmative vote of a majority of the total authorized membership of the regional commission, with the following exceptions: (a) No permit may be issued for any of the following purposes without the affirmative vote of two-thirds of the total authorized membership of the regional commission, or the state commission on appeal: (1) Dredging, filling, or otherwise altering any bay, estuary, salt marsh, river mouth, slough, or lagoon. (2) Any development which would reduce the size of any beach or other area usable for public recreation. (3) Any development which would reduce or impose restric- tions upon public access to tidal and submerged lands, beaches and the mean high tideline where there is no beach. -35- (4) Any development which would substantially interfere with or detract from the line of sight toward the sea from the state highway nearest the coast. (5) Any development which would adversely affect water quality, existing areas of open water free of visible structures, existing and potential commercial and sport fisheries, or agricultural uses of land which are exist- ing on the effective date of this division. (b) No permit is required for the following types of development: (1) Repairs and improvements not in excess of seven thousand five hundred dollars ($7,500) to existing single-family residences; provided, that the commission shall specify by regulation those classes of development which involve a risk of adverse environmental effect and may require that a permit be obtained. (2) Maintenance dredging of existing navigation channels or moving dredged material from such channels to a disposal area outside the permit area, pursuant to a permit from the United States Army Corps of Engineers. (c) The regional commission may provide for the issuance of permits by the executive director in cases of emergency or for repairs or improvements to existing structures not in excess of $25,000 and other developments not in excess of $10,000. (Non-emergency permits would not be effective until after reasonable public notice and adequate time for review of such issuance had been pro- vided. If any two members of the regional commission request at the first meeting following the issuance of such permit, the -36- issuance shall not be effective and the application shall be set for normal public hearing). (d) If, prior to the effective date of the initiative, any city or county has issued a building permit, no person who has a vested right in that permit shall be required to obtain an additional permit from the regional commission, providing that no substantial changes are made in any such development. Any person shall be deemed to have a vested right if, prior to April 1, 1972, he has in good faith and in reliance upon the building permit diligently commenced construction and per- formed substantial work on the development and incurred sub- stantial liabilities for necessary work and materials. SPECIFIC REVIEW AND APPEAL PROCEDURES After an application for a development permit has been made, the initiative provides that the regional commission shall give "written public notice of the nature of the proposed development and of the time and place of the public hearing." The hearing must be set no less than 21 nor more than 90 days after the application has been filed, and the regional commission must act upon the application within 60 days after the conclusion of the hearing. Such action shall become final after the tenth working day unless an appeal is filed with- in that time. Once a decision on the application has been made by the regional commission, it may be appealed by any party to the state commission. The state commission "may affirm, reverse, or modify the decision of the regional commission." The state commission may also decline to hear appeals that it determines raise no substantial issues. If the state commission fails to act within 60 days after -37- a notice of appeal has been filed, the regional commission's decision becomes final. Appeals heard by the state commission shall be scheduled for a de novo public hearing and shall be decided in the same manner and by the same vote as regional commissions. In addition to the above appeals procedure, any party may petition for judicial review of decisions made by the state or regional commission. Any party may also seek injunctive relief, or maintain an action for the recovery of civil penalties. It is not necessary to post a bond prior to seeking injunctive re- lief, and any person who is successful in obtaining a restraining order or who prevails in an action to recover penalties is entitled to a personal award for costs, including reasonable attorneys' fees. OTHER PROVISIONS AMENDMENTS A 2/3 vote is necessary for the Legislature to amend any of the initiative pro- visions. TERMINATION All initiative provisions terminate 91 days after the final adjournment of the 1976 Regular Session of the Legislature. CONFLICT OF INTEREST The initiative includes specific conflict of interest provisions designed to restrict the participation of commission members and employees, former members and employees of one year or less, and certain business associates from parti- cipating in any official commission deliberations or other official matters on their personal behalf. Current members and employees are further prohibited from participating in an official capacity in any matter in which they, their -38- family, or certain business associates have any financial interest. PENALTIES A civil fine of up to $10,000 could be imposed for violation of any of the in- itiative provisions. An additional fine of up to $500 per day could be imposed for each day an unlawful development "persists." -39- CURRENT PROGRAMS [FEDERAL] CURRENT POLICIES AND PROGRAMS FOR LAND USE CONTROL THE FEDERAL ROLE CURRENT POLICIES AND PROGRAMS FOR LAND USE CONTROL THE FEDERAL ROLE Most federal agencies with domestic functions exercise some type of influence on land use controls and management. This section focuses on four types of federal programs that have a direct or indirect impact on land use. These four categories of federal programs are: programs which manage federally owned land; programs which regulate some type of land use; grants for certain types of de- velopment; and grants for land use planning. This section also analyzes pro- posed federal legislation which authorizes financial assistance for state land use agencies and state coastal management agencies. Perhaps the most important role the federal government plays in land use con- trol is the ownership and management of its property and installations. The impact of federal lands extends beyond their boundaries. The location and man- agement of federally-owned properties influences the land uses of the surround- ing areas and often has regional impact. Several federal agencies have permit regulations which affect coastal areas. These agencies include the Corps of Engineers, the Coast Guard and the Atomic Energy Commission. The federal government finances a large portion of the development of public facilities, including water and sewer facilities and transportation facilities. These two types of facilities determine land use to a great extent and these programs have delineated the land use patterns in many metropolitan areas. The most important planning program is the Section 701 program administered by the U.S. Department of Housing and Urban Development. Several other programs provide a small level of support for planning efforts. These planning programs have had a limited impact on land use control. The planning functions supported -40- by the federal programs have been administratively separated from the imple- mentation and control mechanisms at the state and local level. The proposed federal legislation requires states to establish control over areas having environmental importance and the bills set up sanctions if the states fail to comply. These bills support and encourage greater state in- volvement in land use planning but do not preempt local regulations. These areas do not cover the complete federal role in land use. The federal income tax policy has a critical influence on land development. Federal in- come tax provisions on depreciation and property tax deductions have encour- aged home construction. Depreciation regulations have also created strong in- terest in subsidized housing. However, federal taxation regulations sometimes conflict with each other and these regulations can conflict with the goals of federal programs. The overall impact of these regulations is not clear. There are also many other federal programs that have an indirect impact on land use. One study lists over 100 federal programs that relate to land use in some way. Many of them have only a limited impact on land use and are clearly beyond the scope of this report. Each of these program agencies, how- ever, are required to specifically report on the environmental effects of their activities according to the terms of the National Environmental Protec- tion Act of 1970. MANAGEMENT PROGRAMS The federal government owns approximately one-third of the land in the U.S. Out of 2.3 billion acres, including Alaska and Hawaii, the U.S. government ad- ministers about 762 million acres. The federal lands in California compose 44.8 per cent of the total acreage -41- (44,903,872 acres out of a total of 100,206,720 acres). The bulk of this land is owned by the Forest Service and the Bureau of Land Management. The following table lists the major land holding agencies and the acres they control in the U.S. and in California. Agency Acres U.S. California Interior Department 540,326,592 20,921,372 Bureau of Land Management 451,043,353 15,584,932 National Park Service 30,124,006 4,165,888 Fish and Wildlife Service 27,970,161 65,966 Bureau of Reclamation 8,751,140 1,104,534 Bureau of Indian Affairs 5,033,849 200 Agriculture Department 186,888,833 20,051,304 Forest Service 186,472,236 20,050,572 Defense Department 30,599,503 3,906,238 Army 11,348,385 966,125 Air Force 8,377,360 472,741 Corps of Civil Engineers 7,259,973 86,528 Navy 3,613,785 2,380,844 The four most important federal land management agencies are the Bureau of Land Management, the Fish and Wildlife Service, the National Park Service and the Forest Service. BUREAU OF LAND MANAGEMENT (BLM) located in the Department of Interior, classifies, manages and disposes of the public lands and their related resources according to the principles of multiple use management. It also administers the mineral resources connected -42- with acquired lands and the submerged lands of the Outer Continental Shelf. BLM typically controls lands of less value than those held by the other three key agencies. It is responsible for the management of 60 per cent of the fed- eral lands, and the BLM lands cover 20 per cent of the total land base in the U.S. Lands under its jurisdiction are located primarily in the far West and Alaska. Public land resources managed by the Bureau include timber, minerals, wildlife habitat, livestock forage, public recreation values and open space. BLM is responsible for the survey of federal lands and maintains public records. It is also responsible for mineral leasing on land held by other federal agencies. FISH AND WILDLIFE SERVICE Located in the Department of Interior, oversees the production and distribu- tion of hatchery fish, the operation of a nationwide system of wildlife refug- es, the regulation of migratory bird hunting, the management of fish and wild- life populations by scientific research and methods, and the improvement and protection of a quality environment for fish and wildlife resources to exist. Most of the lands managed by the Fish and Wildlife Service are wildlife refug- es. The National Wildlife Refuge System includes 330 refuges and game ranges managed for migratory birds, protection of endangered species, public enjoy- ment of natural resources, and economic benefits from sales of land products and concessions. The Fish and Wildlife Service also studies environmental impact statements and water use projects proposed by federal or private agencies for the probable effects of such projects on fish and wildlife resources and recommends measures for their conservation and development. It places emphasis on conservation of -43- estuaries and development of comprehensive river basin plans which consider future needs based on fish and wildlife. NATIONAL PARK SERVICE Located in the Department of Interior, manages an extensive system of nation- al parks, recreation areas and monuments. Its purpose is to conserve the scenery and the natural and historic objects and the wildlife of the park areas. Park areas are divided into three categories: natural, historical and recreational. The Park Service works to develop the full potential of each area for the public's enjoyment and education and to protect the natural and cultural resources in those areas. FOREST SERVICE Located in the Department of Agriculture, manages 154 national forests and 19 national grasslands in 41 states. The Forest Service manages these lands on the principles of multiple use and sustained yield. It balances the large de- mand for wood and paper products with other resources and benefits such as recreation, wildlife habitats, livestock forage and water supplies. The Forest Service protects these lands from fires, erosion, floods and water and air pollution. Timber harvesting methods are used which will protect the land and streams, assure rapid renewal of forests and have minimum impact on scenic and recreation values. Some 14.5 million acres are set aside for wild- erness and primitive areas where timber will not be harvested. Major technical support has been provided by the Forest Service to the Tahoe regional planning agencies in preparing the multi-purpose land use plan and strategy for the entire Basin. TRANSFER OF FEDERAL LANDS TO STATE AND LOCAL GOVERNMENTS -44- The federal government is currently surveying its property and turning over selected parcels to state and local governments. These excess parcels are primarily lands managed by the Defense Department. The transfers are usually designated for parks and open space. So far, 144 tracts in 39 states have been converted to parks. This program, known as the Legacy of Parks program, began two years ago. The first transfer was at Camp Pendleton in California. The Defense Department leased six miles of the 17 mile coastline of Camp Pendleton to the State of California. The Property Review Board, which is the operating agency for this program, in- tends eventually to survey all federal lands. At the present time it is foc- using its efforts on military bases making up 58 million acres. The Board has turned up major problems in the management of federal property. Donald Rumsfield, director of the Board, stated: "It was apparent that many thousands of acres of federal real estate throughout the country were being wastefully managed, while other vast areas were unnecessarily fenced off, their enjoyment denied to the American people to whom they belong." INTER- AND INTRA-GOVERNMENTAL COOPERATION The extent of federal ownership of land poses a major difficulty for land use agencies in California and other Western states. It is difficult for the land use agencies in these states to plan for non-federal lands because they are unable to obtain sufficient information on federal land management activities. The state and local governments do not have any input into federal decisions and they are not consulted before the decisions are made. The problem for state agencies is compounded by the fact that federal lands are often scattered in checkerboard fashion. -45- The lack of intergovernmental cooperation in land use decisions also poses problems for the federal land management agencies. Unplanned or badly planned land use patterns on the periphery of federal lands threaten the quality of national parks, wildlife refuges and wilderness areas. These problems could be avoided or alleviated with better intergovernmental cooperation and coordi- nation. Federal land management agencies often fail to coordinate decisions among themselves, but lack of intra-governmental cooperation is usually unintention- al. The decision makers are often unaware of the land use impacts of their decisions. A recent report from the Senate Committee on Interior and Insular Affairs high- lighted this problem. We have conducted too many of our programs and activities in inex- cusable ignorance of their often contradictory and deleterious ef- fects. Illustrative of this was the Everglades Jetport controversy. In the Senate Interior Committee hearings in June 1969, three pres- tigious federal agencies were (found to be) undertaking activit- ies--flood control, airport development, and national parks and rec- reation programs--in compliance with their mission-oriented guide- lines but with little appreciation of the contradictory, self-de- feating, and environmentally destructive land use impacts of those activities.* Another major problem in federal land use management is the lack of an adequate data base for land use planning or for decisions having an important land use impact. Another Senate committee report focuses on this problem. Four years ago, Congress wrestled with a final decision on the issue of whether dams would be constructed in the vicinity of the Grand Canyon. Last year, this Committee held a series of hearings on the Four Corners power question, considered by many to present an equal or greater threat to the environment. The issues involved were much the same-growing West Coast energy needs and environmental protec- tion--but in neither case, when the first decisions were made, were the issues properly addressed with data sufficient to identify the *National Land Use Policy Background Papers, Committee on Interior and Insular Affairs, U.S. Senate, April 1972, p. 7. -46- various options and their potential environmental, economic and soc- ial consequences.* The use, management and disposition of the federal lands obviously is extremely important in California. Several recent events and current proposals illus- trate this fact. The National Park Service established the Point Reyes Nation- al Seashore in 1962. This park covers over 64,000 acres of coastal area. The Defense Department recently leased six miles of beach area in Camp Pendleton to the State of California. The Defense Department is reviewing all its hold- ings in California, and the state will have an opportunity to purchase any lands that are declared excess property. Congress is considering a Golden Gate National Seashore which would encompass 8,000 to 16,000 acres at the entrance to the San Francisco Bay. ENVIRONMENTAL PROTECTION ACT The National Environmental Protection Act (NEPA) was designed to make environ- mental protection a part of the mandate of every federal agency. NEPA requires each agency to thoroughly evaluate the environmental impact of its decisions. In particular, if an agency is involved in federal activity that significantly affects the quality of the environment, it must file a detailed statement which discusses the following topics: 1. the environmental impact of the proposed action; 2. any adverse environmental effects which cannot be avoided should the proposal be implemented; 3. alternatives to the proposed action; 4. the relationship between local short-term uses of man's environment and the maintenance and enhance- ment of long-term productivity; Land Use Policy and Planning Assistance Act of 1972, Report of the Committee on Interior and Insular Affairs, June 19, 1972, p. 40. -47- 5. any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented. REGULATORY PROGRAMS While a number of federal agencies have a direct or indirect regulatory role in land use decisions, three of them are of particular importance to coastal areas. These agencies require permits for certain uses in and around waterway areas and regulate specific land or water uses. CORPS OF ENGINEERS The Corps has responsibility for planning, programming and budgeting for the improvement of rivers, harbors and waterways for flood control and related pur- poses. It constructs, operates and maintains developments such as dams and causeways in navigable waterways. It also administers the laws for the pro- tection and preservation of these waters. The Corps conducts studies of the most suitable methods of beach protection and restoration. It provides assistance to states, counties and municipalities for determining appropriate locations for recreation facilities. Congress and the courts are interpreting the statutory authority of the Corps to include consid- eration of public access, recreation, and protection of ecological and environ- mental values in its projects and in waterways under its surveillance. The Corps has provided considerable support to management and planning efforts directed at the California Coastline as evidenced by their National Shoreline Studies published in 1971. These reports focused on a "California Regional In- ventory", "Shore Management Guidelines" and "Shore Protection Guidelines". The Corps' role is particularly important in coastal areas because it regulates -48- all types of development which affect the navigable capacity of waterways. No one can discharge refuse into navigable waters without a permit from the Corps. Finally, anyone building a pier or bulkhead, dredging or drilling must obtain a permit from the Corps. The Corps can fine violators and obtain injunctions against them. COAST GUARD The Coast Guard is the federal maritime law enforcement agency. Its activit- ies include search and rescue missions, boating safety, merchant marine safety and navigation aids. Perhaps the most important function of the Coast Guard that affects land use is the regulation of bridges. Any governmental or private agency building a bridge over navigable waters must receive approval from the Coast Guard. The Coast Guard oversees the location, clearance and lighting of bridges. It also can alter or remove bridges that obstruct navigable waterways. ATOMIC ENERGY COMMISSION The Atomic Energy Commission was established to provide and administer programs for research and development in atomic energy uses, international cooperation, production of atomic energy and special nuclear materials and the dissemina- tion of scientific and technical information. It has responsibility to protect the safety of the public and to regulate the control and use of nuclear mater- ials. The AEC regulatory functions include licensing and regulation of the civilian use of nuclear materials. It issues permits for the construction of nuclear power plants and any other nuclear facilities. In carrying out these regula- tory functions, it negotiates agreements with states for their assumption of -49- certain licensing and regulatory authority for atomic energy activities. En- vironmental impact review is required by AEC prior to the issuance of approval of any proposed nuclear power plant site. DEVELOPMENT PROGRAMS The federal government has set up a large number of grants, loans, and other forms of assistance to state and local governments for development projects. The two types of development projects which have the greatest impact on land use are transportation and water and sewer construction. The two major trans- portation programs are the Interstate Highway System and the ABC program which finances primary and secondary roads. Four different agencies finance the planning and construction of water and sewer facilities. TRANSPORTATION Federal aid to assist states in road construction began in 1916. The first federal assistance to urban highway programs was in 1944. The inter-state highway program, started in 1956, produced a three-to-fourfolo increase in federal expenditure for transportation assistance. Congress enacted extensive requirements and physical standards in 1962. ADMINISTRATION The U.S. Department of Transportation has numerous transportation programs in- cluding such items as beautification and mass transit. The two largest pro- grams are the interstate highway program and the ABC program. The federal government pays ninety per cent of the cost of the interstate system which will total 43,000 miles when completed. The program pays fifty per cent of the cost with the remaining share covered by the state governments. -50- Congress has established the formulas for apportionment of funds for these two programs. Monies for interstate highways are apportioned to each state on the basis of the state's estimated share of the total financing required to complete the system. The ABC program distributes funds according to each state's relative share of population, land area and road mileage. The funds for highway programs are disbursed to state highway departments. Each state submits a plan, specifications and cost estimates. DOT approves a state transportation system and then provides funds as the states complete approved individual projects within that system. Federal funds can be used to reimburse planning, design and construction. BUDGET The primary source of financing for both programs is the Highway Trust Fund. A four cent tax on gas, oil, and rubber produces the money for the fund. Congress makes authorizations for expenditures on the basis of the amount in the fund. Total annual authorizations for the fund increased markedly in the late 50's from $575 million in 1955 to $3.4 billion in 1960. Authorizations totaled $5.4 billion in 1972. Interstate System authorizations represent about three- fourths of the 1972 figure or $4 billion. PROPOSED CHANGES Several important changes will probably take place in federal transportation policy in the next few years. The 1972 National Highway Needs Report rec- ommends that a Single Urban Fund be established to fund urban highway and mass transit projects. The purpose of this change is to provide increased resources to deal with the problems of transportation in our major metropolitan -51- areas and to provide an assured pattern of program growth by funding both highway and mass transit projects from the highway trust fund. The Interstate highway program would be continued as a separate program.* Apparently DOT will place increasing emphasis on solving urban transportation as the inter- state system nears completion. WATER AND SEWER Four federal programs make grants to states and localities for water and sew- er projects. The following agencies administer these programs: Environmental Protection Agency, Department of Housing and Urban Development, Farmers Home Administration and Economic Development Administration. OFFICE OF WATER PROGRAMS This agency is located in the Environmental Protection Agency and provides funds for the construction of wastewater treatment works, including inter- cepting and outfall sewers. Collector (residential sewer systems) are not eligible for grant assistance. The program assisted approximately 9400 public facilities between FY 1957 and FY 1969. EPA took over the program in December 1970 when EPA was established. Although EPA has many grant programs to assist pollution control, the waste- water treatment works construction grant program accounted for $2 billion of the $2.4 billion appropriated to EPA in FY 1972. The agency distributes funds to the state principally on a population formula, thereby favoring more populous states. The federal share currently may not exceed 55 per cent of the planning and construction costs. The matching pro- visions are complex and the federal contribution is dependent on the state share and the local share. For example, if the state share is 25 per cent and the project conforms to enforceable water quality standards, the federal *Part 1 of 1972 National Highway Needs Report, 1972, p. VII. -52- share may go up to 50 per cent. Between FY 1968 and FY 1971 appropriations increased from $203 million to $1 billion. The appropriation in this program essentially doubled in FY 1972 to $2 billion. Pending legislation in Congress would raise the funding to a level of $5 billion in FY 1975. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT This department administers two community facilities programs which provide grants for 1) basic water and sewer facilities and 2) public facilities loans. The basic water and sewer program provides direct grants of up to 50 per cent of the cost of construction. Eligible projects include those providing for the storage, treatment, purification and distribution of water, as well as those for the collection and transmission of storm and sewer water. The sew- age grants cannot be used for waste treatment facilities and are primarily designed to support construction of collector lines. The grants serve to com- plement the grants EPA awards for wastewater treatment works. In order to receive federal assistance, a project must be consistent with an officially coordinated or unified program for an areawide water or sewer fac- ilities system as part of the planned development of the area. Local public bodies, state and interstate agencies, and boards or commissions established by state law to finance water and sewer improvement projects are eligible for grants. Congressional appropriations for this program totaled $350 million in FY 1971 and approximately $500 million in FY 1972. However, despite the large demand for water and sewer funds at the state and local level, the Office of Manage- ment and Budget has allowed expenditures of only $150 million per year for several years. PUBLIC FACILITY LOANS -53- HUD also grants public facility loans to help finance public facility construc- tion when credit to support such projects is not otherwise available on reason- able terms. Loans may be made to municipalities and other political subdivi- sions having populations under 50,000 but priority is given to communities with less than 10,000 inhabitants needing funds to construct water, sewer and gas distribution systems. The public facility loans which were authorized by the Housing Amendments of 1955, must be of sound value or adequately secured SO as to provide reason- able assurance of repayment. Interest rates are set by statute at either 0.5 per cent above the rate on all interest-bearing obligations comprising the fed- eral debt or 3 per cent whichever is higher. Maturities on these loans are limited to 40 years. Loan assistance is concentrated in areas with credit shortages, chiefly in Southeastern and Southwestern states. In intra-regional terms, the assistance goes chiefly to very small, poor, rural communities. There is virtually no flow of funds to metropolitan areas or growth centers. Net loan approvals were $40 million in FY 1971. ECONOMIC DEVELOPMENT ADMINISTRATION The principal EDA assistance program affecting water and sewage line construc- tion is the grant/loan program for public works and development facilities. Grants and direct loan funds are used to assist communities whose economic growth is lagging behind the rest of the nation to construct or improve the basic public services and industrial infrastructure required to attract growth-generating enterprise. Eligible communities are in areas designated by EDA according to the rate of unemployment, population loss, low income, and areas experiencing a sudden -54- rise in unemployment 50 per cent above the national. Direct loans and two types of grants are available under the program. Basic grants provide up to 50 per cent of the project cost, and supplementary grants can raise the federal share to 100 per cent of the total cost. Grants account for approximately 65 per cent of the program's funds. Although this program is authorized up to $500 million, Congress has appro- priated about $160 million for each of the past several years. Approximately 60 per cent of the funds go for water and sewer facilities, about half expended for plants and the other half for collection or distribution lines. FARMERS HOME ADMINISTRATION This U.S. Department of Agriculture agency has more than 20 major loan and grant programs. Its soil and water program provides loans and grants to non- profit organizations to construct community water and sanitary sewer systems. Public or quasi-public bodies and corporations not operated for profit which will serve rural areas of up to 5500 population may receive financial and technical assistance in planning, developing and improving or extending water and waste disposal systems. Loans and grant funds may be used to cover costs related to water supply pipelines and sewer lines. A borrower's total indebtedness for assistance may not exceed $4 million at any one time. Grants may be made to help finance up to 50 per cent of the development cost of a water or waste disposal system when grants are needed to reduce to a reasonable level the charges the users will pay. The funding level for rural water and waste disposal grants was $41 million in FY 1971. Direct loans totaled over $32 million the same year. -55- OTHER DEVELOPMENT PROGRAMS The U.S. Department of Housing and Urban Development funds up to 50 per cent of the total cost of acquisition and development of open space land in urban areas. Development costs may include roadways, basic utilities, recreational facilities, improvements of acquired structures and preservation of historic and architecturally significant structures.* Only urban areas are eligible to receive the grants. The federal obligation in FY 1971 was $75 million and this level increased to an estimated $100 million in FY 1972. During FY 1972, HUD approved 551 open space grants. Other federal programs having an impact on land use are home mortgage insur- ance and urban renewal. HUD's mortgage insurance program enables homebuyers to obtain mortgages with relatively low down payments. In FY 1971 HUD extended mortgage insurance through its non-subsidized Section 203(b) program to approx- imately 220,000 homes valued at over $4.6 billion. This program has been a major factor in the development of suburban areas around the large central cities. The urban renewal program provides grants for surveys and planning, land ac- quisition and clearing, rehabilitation of existing structures and installation of public improvements in areas designated for renewal. These grants cover two-thirds of the project costs. The federal obligations for this program in FY 1971 were $551 million. The program is proposed to be folded into revenue sharing in 1973. Airport grants, available for the Federal Aviation Administration, fund 50 per cent of the cost for land acquisition, site preparation and runways, *Catalog of Federal Domestic Assistance, Office of Management and Budget, 1972, p. 397. -56- lighting utilities and other basic facilities. Federal obligations totaled $170 million in FY 1971 and are estimated at $280 million for FY 1972. FAA also provides planning grants for the development of airport master plans and system plans. The Department of Transportation assists in financing the acquisition, con- struction and improvement of facilities and equipment for urban mass trans- portation systems. Grants are made for not more than two-thirds of project costs. Grant obligations were $284 million in FY 1971 and increased to an estimated $510 million in FY 1972. PLANNING PROGRAMS Four federal programs provide grants to state governments which are earmarked for planning purposes. These programs are designed to increase the states' planning capability and to enable the states to meet legislative require- ments for receipt of development funds. The Section 701 program has played a major role in the establishment of state and local planning agencies all over the country. However, the other three programs have had a rather limited impact partly because of the low level of funding. 701 PLANNING PROGRAM AUTHORITY The National Housing Act of 1954 set up the Section 701 planning program. The legislation stipulates that grants to state agencies are authorized for the provision of planning assistance to municipalities of less than 50,000 population and to counties without regard to population. However, if a county has a population greater than 50,000 and is located within a metropolitan area, its planning must be coordinated with a program of comprehensive planning -57- being carried out for the metropolitan area. Regional planning agencies and planning agencies in cities of over 50,000 can apply for grants directly to HUD. ADMINISTRATION The U.S. Department of Housing and Urban Development administers the Section 701 program. The program is designed to promote sound local, areawide and statewide development through comprehensive planning. It provides grants of up to two-thirds of the cost of a planning project in most cases. All appli- cants must have an overall program design and they have to make application to HUD annually. Eligible activities under the program include the preparation of development plans, policies and strategies; implementation measures; and the coordination of related plans and activities being carried on at various levels of govern- ment. A broad range of subject may be considered in the course of the compre- hensive planning process. They include land development patterns, housing, community facilities, the development of human resources and the development and protection of natural resources.* STATE AGENCIES The activities carried out by state planning agencies vary from state to state. Generally, these agencies conduct a statewide planning program and provide technical assistance to small communities. Some state agencies focus on statewide planning while a few limit their activities to providing tech- nical assistance. BUDGET *Catalog of HUD Programs, HUD-214-SP, July 1971. -58- The funds authorized for the program have increased markedly since the pro- gram's inception. In 1955 Congress authorized $1 million, in 1964, $21 mil- lion and in 1970, $50 million. In 1971, HUD merged the Community Renewal Program which provided planning grants to cities over 50,000 population with the 701 program. As a result of this merger, the authorization for the 701 program in 1972 fiscal year totaled $100 million. PROPOSED CHANGES Several changes are currently taking place in the administration of the pro- gram. HUD is now emphasizing that the 701 grants are for planning and manage- ment assistance. HUD apparently is focusing on management because many agencies have developed plans rather than setting up a planning process. In line with this emphasis, HUD is aiming to support the chief executive of state and local governments in formulating and coordinating community develop- ment strategies. The proposed 1972 Housing Act increases the authorization for the program from $100 million to $200 million. It also replaces the federal two-thirds matching grant with an 80 per cent-20 per cent matching ratio. OUTLOOK The major contributions of the program have been the development of a state planning capability in virtually every state and the support of areawide planning agencies, COG's (Council of Governments). In the next four years, the program should improve the management capability of state and local gov- ernments. WATER RESOURCES PLANNING COUNCIL AUTHORITY -59- Several other federal programs provide monies to state agencies for plan- ning purposes. The Water Resources Planning Council prepares a continuing inventory of water resources throughout the country. It is an independent agency set up in 1965 by the Water Resources Planning Act. The two main functions of the Council are to establish and assist river basin commissions* and to administer federal financial grants to states for water and related land resources planning. ADMINISTRATION All states are eligible to receive the planning grants. A designated state agency, usually the state agency dealing with natural resources, must submit an application that indicates the intended use of the funds. The planning effort should be aimed at the conservation, development and utilization of water and other related land resources in a manner which protects the public interest. The grants cannot be used for construction. Otherwise, the states have extensive flexibility in using the funds. The appropriated monies are distributed on the basis of several criteria. Sixty per cent of the grant money is determined by state population, land area and income. The remaining. forty per cent is distributed on the basis of need. BUDGET The original legislation authorized $5 million per year for ten years begin- ning in 1967. Appropriations have been relatively low, however, reaching some $3.7 million for FY 1971. BUREAU OF OUTDOOR RECREATION Seven commissions have been created thus far. Their jurisdictions cover most of the northern half of the country. -60- The Land and Water Conservation Act of 1962 established the Bureau of Out- door Recreation. This bureau, located in the U.S. Department of Interior, supplies grants to states for the planning, acquisition and development of outdoor recreation areas. In order for a state to receive acquisition or development grants, it must develop a comprehensive statewide outdoor rec- reation plan and update and refine it on a continuing basis. The plans identify the capital investment priorities for acquiring, developing and pro- tecting significant outdoor recreation resources within a state. The 50-50 matching grants cover planning, acquisition and development. ECONOMIC DEVELOPMENT ADMINISTRATION EDA is an agency of the Department of Commerce. It has authority to provide grants and direct loans to non-profit organizations for the planning and con- struction of public works, industrial parks and vocational educational facil- ities and in general to organize projects designed to stimulate economic growth and employment. EDA supplies planning grants to a county or multi-county organizations. These grants enable the local EDA organization, composed of elected officials and private individuals, to employ a full time staff. The staff must submit an Overall Economic Development Program for the area before it is officially designated as an EDA district. The fiscal year 1972 appropriation for EDA planning grants was $5.5 million. EDA distributed these funds to 124 districts. LEGISLATION Congress is considering a number of bills which would have a direct impact on state land use controls. Several of these bills would return control for -61- developments with regional impact from local government to the states. Other bills support state regulation of coastal areas. Overall, these pieces of legislation reflect a growing support in Congress for improved state control over large-scale development and over areas of environmental importance. LAND USE POLICY AND PLANNING ASSISTANCE ACT OF 1972 (S 632) This Act requires the states to set up a state-wide land use planning pro- cess. Each state's land use planning program would focus only on those land use decisions which have an effect outside of the local land use regulatory agency. The American Law Institute estimates that only 10 per cent of all land use decisions fall into this category. The state planning process is designed to develop a data base on the state's land and natural resources, and its population and economic trends, and pro- jections of the quantity of land needed for various uses. The states are re- quired to have a staff and an appropriate planning agency three years after enactment. The bill places emphasis on the implementation of the state land use programs rather than their substance. It requires state land use programs to exercise determinative state authority over areas of critical environmental concern, large-scale developments of more than local significance and key facilities and to assure that local regulations don't unreasonably restrict developments of regional benefit.* The legislation requires that a land use program deal- ing with these four areas be developed within five years. The proposed program sets up both carrot and stick for states. The annual authorization is $100 million for eight years. Under the bill, the U.S. gov- ernment would fund 90 per cent of the state costs for the first five years *Land Use Policy and Planning Assistance Act of 1972, Report of the Committee on Interior and Insular Affairs, U.S. Senate, 1972, p. 52. -62- and two-thirds of the cost for the next three years. SANCTIONS If the states do not meet the requirements in the legislation, the federal government cuts off a portion of the state's funds in three federal grant-in- aid programs. The proportion is 7 per cent the first year and increases to 21 per cent by the third year. The three programs are the 1970 Airport and Airway Development Act, the Land and Water Conservation Act of 1965 and var- ious federal highway programs excluding the Interstate Highway System. "The three programs for which funds would be withheld are deemed to have the most significant long-range and irreversible impacts upon land-use patterns because of the exceptional influence they have over public and private devel- opment. ** The Interior Department estimates that the three programs on which sanctions would be imposed provide $1,756,775,000 to the states. California is the state that could be affected most by the sanctions in the event of noncompli- ance. It now receives $125 million from the programs. About $9 million could be withheld under the 7 per cent penalty and over $26 million could be with- held under the 21 per cent penalty. Thus, there is substantial incentives for a state to participate in the land use program. If a state is declared ineligible, it may appeal to a three-man board. The board is composed of a governor and an impartial federal official selected by the President and an impartial citizen selected by the other two board mem- bers. *Land Use Policy and Planning Assistance Act of 1972, Report of the Committee on Interior and Insular Affairs, U.S. Senate. -63- FEDERAL ROLE While most of the bill's requirements deal with the ability to implement the land use planning process, rather than the substance of the activities, it does leave the door open for federal review of areas designated to be of critical environmental concern. The states cannot exclude from the areas of critical environmental concern any substantial areas which are of major national signi- ficance and require special planning and management. If a state requests, the federal government will indicate those areas of major national significance before the five-year deadline for submission of a land use program. Areas of critical environmental concern, according to the Senate report, include coastal wetlands; marshes; other lands inundated by tides; beaches and dunes; signi- ficant estuaries; shorelands; flood plains of rivers, lakes and streams; scen- ic areas, forest and related land which require long stability for continuing renewal, etc. In effect, the federal government can control the designation of these areas and will guide the states in selecting them. INTERAGENCY COOPERATION The administration of the program comes under the Assistant Secretary for Planning in the Department of Interior. However, nine other federal agencies must participate in the federal review of the state programs and the determin- ation of grant eligibility. In addition, HUD not only makes general recom- mendations, but also indicates if it is satisfied with the large-scale devel- opment, developments of regional benefit and key facility components of the state land use program. FEDERAL-STATE COOPERATION Federal grant and loan programs such as water and sewer construction must be consistent with the approved state land use programs. The state land use -64- agency must indicate its views on applications from state and local govern- ments. These applications to be reviewed should have significant land use com- ponents in an area or areas subject to the state land use program. The bill sets up two requirements for federal and state coordination in con- trolling land use in federally-owned lands and in the areas adjacent to fed- eral lands. The federal agencies owning land within a state must coordi- nate their plans, programs and policies for their lands with the state land use agency. If a federal agency plans any changes in the use of their lands, it must publish a statement outlining the consistency of the proposed changes with the state and local land use programs. Second, the states must try to ensure that federal lands are not degraded because of adjacent land uses. This requirement applies particularly to national parks and wilderness areas. The Secretary of Interior, on his own authority or at a governor's request, can set up ad hoc committees to deal with specific conflicts that arise in the management of federal lands and adjacent areas. Representatives of fed- eral and state agencies, local governments and user groups will sit on the committees. STATE-LOCAL ROLE While the states must exercise determinative authority over the four land use areas, they have the option of either directly planning for these areas or letting local agencies carry out the planning. If a state chooses the latter option, it must establish guidelines and controls for the local agencies to follow. The Senate report says: "The Act does not require or contemplate radical or sweeping changes in the traditional relationship and responsibility of local government for land-use management. It does, however, require that the states -65- play an active role in major land-use planning and management decisions which are of regional, state or national concern." OUTLOOK Several Senate committees want to review the bill. Both the Public Works and Banking, Housing and Urban Affairs Committee chairmen will probably re- quest changes. This process of committee review may take several weeks or several months. Once the bill is finally put up for a vote, it should pass but committee reviews may delay passage this session. NATIONAL LAND POLICY AND MANAGEMENT ACT OF 1972 (HR 7211) This legislation is sponsored by Wayne Aspinall, chairman of the House In- terior and Insular Affairs Committee. A section dealing with state land use control of private lands and a section dealing with the management of public lands are both included in the bill (HR 7211). PRIVATE LANDS The private lands section is similar to the Land Use Policy and Planning As- sistance Act (S 632). The primary difference is the funding level for the state land use programs. The House bill authorizes $204 million spread over five years. The amount and federal share decrease over the five years. The authorization for the first year is $54 million with the federal share at 90 per cent; for the next two fiscal years, $45 million and a federal contribu- tion of 75 per cent, and for years following $30 million with a 50 per cent federal payment. The controls, sanctions and administration of the state land use programs are almost identical to those outlined in the Senate bill. It requires the state land use planning programs to establish control over areas of environmental -66- concern, large-scale developments, key facilities and developments of reg- ional benefit. If a state does not establish an acceptable planning process, federal funds for airport, highway and land water conservation are withheld on a graduated scale of 7 per cent, 14 per cent and 21 per cent over three years. The Sen- ate bill designates that these funds are to be held in escrow and given to states when they obtain or regain eligibility. The House bill is more severe and stipulates that the withheld funds will be distributed to eligible states. The Assistant Secretary for Land Use Policy and Planning in the Department of Interior will administer the program. The House bill sets up a National Land Use Policy and Planning Board to coordinate the land-use activities of federal agencies and three national land-use citizen advisory committees for federal agencies, and it encourages citizen advisory councils of 10-15 mem- bers for regions, states, districts and localities. PUBLIC LANDS The public lands section of the House bill is in part based on the 1970 re- port of the Public Land Law Review Commission. Mr. Aspinall was largely res- ponsible for initiations of the commission's six-year study of the use of public lands. This section requires all federal agencies which manage public lands to draw up land use plans. The objective is to establish uniformity in the acquisi- tion and management of federally-owned land, for mining and mineral leasing claims, animal grazing leases, timber harvesting, recreational activities and other uses. In order to achieve this objective, the bill provides for reten- tion of federal ownership of the bulk of public lands, transfer of public lands to non-federal ownership for purposes designated by statute, the management -67- of such lands in a manner that protects the environment, the coordination of regional, state and local land management plans, and public participation in all procedures leading to the classification of any public plan. * REVIEW OF PUBLIC LANDS Under the legislation, Congress will review land set aside by executive with- drawals which includes most national forests in the western part of the coun- try most wildlife refuges and some national monuments. Congress would not re- view lands that it has given public status such as national parks and wilder- ness areas. The Secretary of Interior will have to examine each withdrawal and submit legislation detailing its purpose and necessity. However, the withdrawals will remain in effect unless they terminate or are revoked by Congress. When land tracts of more than 25,000 acres are to be sold or classified for a use that would exclude other uses for more than a year, the agencies in- volved would have to seek permission of the Senate and House interior com- mittees. Both panels must approve. OUTLOOK Environmentalists are strongly opposing the bill. The review of public lands would encompass almost all lands now managed by federal agencies including the Bureau of Land Management. It could lead to a change in usage or sale of areas already set aside as national forests or wildlife refuges. The Administration is also opposing the bill, and efforts are being made to separate the public lands section and the private lands section. If the pri- vate lands section is split off, it will most likely pass the House. Because Norman Beckman, "Toward Development of a National Urban Growth Policy," Journal of American Institute of Planning, July 1972, p. 246. -68- this section is quite similar to the Senate bill (S 632), a Senate-House con- ference on the two bills would face little difficulty and congressional enact- ment would probably follow. However, Wayne Aspinall opposes splitting his bill. If it is not split, en- vironmentalists and the Administration are expected to move to defeat it. In that event, legislation dealing with state land use programs covering private lands would not come out of Congress this year. NATIONAL RESOURCE LANDS MANAGEMENT ACT (S 2401) The Senate is also considering a public lands bill. The National Resource Lands Management Act (S 2401) gives the Bureau of Land Management a firm oper- ating charter. It does not deal with public lands managed by other federal agencies. Unlike the Aspinall bill, this legislation uses existing procedures for execu- tive withdrawals such as national parks, monuments or forests. It declares that the federal government should continue to own the lands administered by the Bureau of Land Management (BLM). However, the Secretary of Interior can sell or dispose of these lands after considering environmental management and public objectives. Finally, the bill requires the Secretary of Interior to make an inventory of all BLM lands giving priority to areas of critical en- vironmental concern and potential wilderness. NATIONAL COASTAL ZONE MANAGEMENT ACT (S 3507) This Act, which has already passed in the Senate, authorizes the Secretary of Interior* to make grants to coastal states for management programs covering *The Act originally placed this program under the Secretary of Commerce. How- ever, the House version of this bill authorizes the Secretary of Interior to administer the program. -69- the land and water resources in coastal areas. The coastal states are those bordering on the Atlantic or Pacific Ocean, Gulf of Mexico and the Great Lakes. The outer limit of the coastal zone is the limit of states' legal authority; the inner limit is flexible. It extends inland only far enough to allow the management program to control the lands whose use has a direct impact on the coastal water. Coastal waters include harbors and estuary-type areas such as bays and marshes. ADMINISTRATION The development grants to the coastal states cannot exceed two-thirds of the cost of a state management program, and no state is eligible to receive more than three annual grants. Once the Secretary of Interior approves a state's coastal zone management program, it is eligible for annual administrative grants covering up to two-thirds of the cost of administering the program. A state may pass-through some of these funds to local, areawide or interstate agencies. To be eligible for an administrative grant the bill specifies that a state must establish one of the following methods to control land use: (1) state establishment of criteria and standards for local implementation, subject to administrative review and enforcement of compliance; (2) direct state land and water use planning and regulation; or (3) coastal state administrative re- view for consistency with the management program of all development plans, projects, or land and water regulations, including exceptions and variances thereto proposed by any state or local authority or private developer, with power to approve or disapprove after public notice and an opportunity for hearings. "* *National Coastal Zone Management Act of 1972, Report of the Senate Committee on Commerce, April 19, 1972, p. 13. -70- The bill also establishes grants for the acquisition, development and opera- tion of estuarine sanctuaries. The grants are designed to create national field laboratories to gather data and make studies of the natural and human pro- cesses occurring within and directly affecting the estuaries. BUDGET AUTHORIZATION The authorization for the program development grants is $12 million for FY 1973 and the necessary sums until the end of FY 1977. The funding for the admin- istrative grants is $50 million to be distributed as necessary each year until expended. The bill allocates $6 million for the estuarine sanctuary grants. FEDERAL-STATE COOPERATION The Act sets up several requirements for intergovernmental and interagency cooperation. Federal agencies must administer programs in the coastal zones so that their activities are consistent with the state management programs. A federal agency cannot undertake a development project in a coastal zone that is inconsistent with a state program unless the Secretary of Interior finds the project is consistent with the objectives of the legislation. State and local applications for federal grants for programs impacting coastal areas must include the coastal management agency's statement on the relation- ship of the proposed program to the state management program. The Act requires applicants for a federal license or permit to conduct any new activity in a coastal zone to submit a state certification that the pro- posed activities comply with the state's approved management program. COASTAL ZONE MANAGEMENT ACT (HR 14146) The House has recently passed a Coastal Zone Management Act which is simi- lar to the Senate bill. It sets up two-thirds development and administra- tive grants for state coastal management agencies and 50 per cent grants for -71- acquisition and development of estuarine sanctuaries. The House bill outlines the characteristics of the state management programs in greater detail. Each program must include: (1) an identification of the boundaries of the portions of the coastal state subject to the program; (2) a definition of what will constitute permissible land and water uses; (3) an inventory and designation of areas of particular concern; (4) an iden- tification of the means by which the state proposes to exert control over land and water uses; (5) broad guidelines on priority of uses in particular areas; and (6) a description of the organizational structure proposed to implement the management program. The bill also authorizes the Secretary of Interior to designate marine sanc- tuaries. These areas would be set up to preserve or restore their conser- vational, recreational, ecological or esthetic values. They would be areas located outside the coastal zone and superjacent to the subsoil and seabed of the continental shelf. OUTLOOK There was little opposition to the coastal zone legislation in the House. Since the Senate and House bills are similar, final approval for a coastal zone management act will probably come in the next few months. A Senate- House conference is now considering the two bills. SUMMARY OF LEGISLATION The table below outlines the major aspects of the proposed congressional legislation discussed in this section. -72- Congressional Land Use Proposals Non-Federal Lands S 632 HR 7211 Purpose Provides federal grants-in-aid Provides assistance to states for to assist states develop land land use programs and establishes use programs. public land policy (see below). Adminis- Places control within Depart- Places control within Department tration ment of Interior under new of Interior under new office of office of land use policy ad- land use policy administration. ministration. Planning Requires states to develop land Requires state to develop land use Process use programs, within five years plans for areas of critical envir- for areas of critical environ- onmental concern, key facilities, mental concern, key facilities, developments of regional benefit, developments of regional benefit large-scale developments, new sub- and large-scale developments. divisions, new communities. Sanc- If state does not develop an ap- If state does not develop accept- tions proved program within five years, able program by July 1, 1976, federal grants-in-aid (for air- federal grants-in-aid (for airports, port development, highways and highways and land and water conser- land and water conservation fund) vation fund) are withheld at 7%, are withheld at an increasing 14% and 21% over three years. rate of 7%, 14% and 21% over Funds revert to U.S. Treasury to be three years. Funds held in es- distributed to qualified states. crow until state qualifies. Grants Authorizes $100 million annual- Authorizes $204 million over five ly for eight years, with fed- years: $54 million the first year eral share 90% for first five with 90% federal share, $45 mil- years and two-thirds for last lion the second and third years three years. (75% federal share), $30 million the last two years (50% federal share). Appeals If a state is declared ineli- No provisions for appeals. gible for grants, the Presi- dent must name an ad hoc hear- ing board which must rule with- in 90 days. Inter- Requires federal-state coordi- Sets up national land use policy Govern- nation and cooperation in plan- and planning board, national com- mental ning and management of federal mittees and advisory councils to Cooper- and adjacent federal lands. coordinate federal and non-federal ation land use planning. -73- Federal Lands S 2401 HR 7211 Cover- Deals only with lands adminis- Applies to all federal lands. age tered by the Bureau of Land Management (BLM). Classi- Requires the Department of In- Requires federal agencies to in- fication terior to inventory all BLM ventory all public lands and clas- lands with priority to areas sify for uses of maximum public of critical environmental con- benefit. cern and potential wilderness. Disposal Authorizes Department of Inter- Authorizes disposal of any federal ior to sell or dispose of BLM lands meeting certain criteria. lands after considering envir- onmental management and public objectives. With- Uses existing procedures for Requires House and Senate Interior drawal executive withdrawals of fed- Committees to review all executive eral lands for national parks, withdrawals over 25,000 acres. monuments, forests, etc. Coastal Zone Management S 3507 HR 14146 Purpose Provides financial assistance Provides assistance to states for to coastal states to develop the management, protection and de- a management program for the velopment of the land and water re- coastal zone. sources of the nation's coastal zone. Adminis- Places control of the program Places control of the program under tration under the Secretary of In- the Secretary of Interior. terior. Grants Authorizes $12 million annu- Authorizes $15 million annually to ally for program development 1975 for program development grants grants (federal share 2/3), (federal share 2/3), and $50 mil- and $50 million annually for lion for 1974 and 1975 for adminis- administrative grants (federal trative grants (federal share 2/3). share 2/3). Also authorizes Also authorizes 50% grants for pur- 50% federal grants for pur- chase of estuarine sanctuaries ($6 chase of estuarine sanctuaries million annually). ($6 million annually). Sanc- Termination of grant. Termination of grant. tions This proposed federal legislation indicates a strong trend toward state regu- lation for land use decisions with regional impact. The purpose of the legis- lation is to assist the states in developing a land use process which promotes -74- economically and environmentally sound uses of the nation's resources. The California Initiative differs from the basic trend indicated in these bills in several respects. The Initiative seeks to control all types of de- velopment. S 632 and HR 7211 focus on large-scale developments, key facil- ities and areas of critical environmental concern. The Initiative aims at a land use plan for the coastal area whereas S 632 and HR 7211 emphasize the development of an effective land use planning process. The proposed legislation requires that the federal assistance go to a state agency established by the governor. This agency must coordinate its activi- ties with other state, regional and local agencies. The Initiative sets up a commission which is not appointed by the governor, and does not require the commission to coordinate its activity with other governmental agencies. -75- CURRENT PROGRAMS [STATES] THE STATE ROLE INTRODUCTION THE STATE ROLE INTRODUCTION States have the constitutional authority to control the use of land within their jurisdiction, but they have typically delegated this authority to the local level. The state role, up until recently, has been limited to owner- ship and management of lands, the location and development of major facilities and tax incentives. The impact of state land ownership is not limited to state lands. The loca- tion of these lands and their use can influence and in some cases determine the uses on surrounding properties. The location of government centers and capital facilities guide growth patterns and are the result of state policy. Finally, through the use of tax incentives, states can indirectly influence the expansion of urban areas and can support preservation of agricultural and open space lands. However, the importance of these functions is limited in comparison to the role played by the local government. The local government through zoning and subdivision legislation has direct control over the location of land uses. In recent years, a number of states have taken steps to recover some of their power over land use control. The section is a detailed examination of this type of land use legislation which states have enacted over the last ten years. It is the focus of this discussion of the state role for several reasons. First, the California Coastline Initiative is an example of this type of leg- islation, and comparisons can be made between it and legislation already enacted by other states. Second, several bills before Congress implicitly require states to establish land use control legislation. -76- The state laws passed during the last decade on land use fall into four cate- gories: (1) direct statewide control of land uses (2) statewide criteria and standards for land use decisions by local governments (3) direct state control of land uses in selected areas (4) state criteria and standards for local land use decisions in selected areas A summary of state legislative requirements and their relation to the Calif- ornia Coastline Initiative is included at the end of the four sections. DIRECT STATEWIDE CONTROL Three states have enacted legislation which establish statewide land use con- trols. The tool for carrying out these controls is a statewide comprehensive planning process. When this type of process is used along with police powers (such as zoning and subdivision laws), the state has an opportunity to influ- ence economic and physical development. Typically the state draws up its comprehensive plan. However, the adminis- tration of the plan may be solely in the hands of the state, or as is usually the case, it may be under a joint arrangement between the state and local governments. Three states utilize the statewide approach. The most important example is the State of Hawaii. HAWAII ADMINISTRATION -77- The Hawaii State Land Use Law of 1961 gave the state much greater control than any other state had previously held over land use. The law set up a state Land Use Commission and instructed the commission to divide the entire state into four districts: conservation, agricultural, rural and urban. The land in the urban district could be used for whatever purpose local zoning regula- tions allowed. Land use in the agricultural and rural districts had to comply with the regulations of the State Land Use Commission, while land use in the conservation district had to meet the regulations of the state's Department of Land and Natural Resources. Several factors provided the impetus for the Hawaii land use legislation. These were the economic importance of agriculture, the imminence of develop- ment pressures and associated threats of urban sprawl and the tradition of a strong, centralized government. During the law's ten years of operation, three basic policies have guided the administrators. (1) The commission should preserve prime agricultural land for agricultural use. (2) It should encourage tourist-attracting de- velopment without disturbing the attraction of the natural landscape. (3) It should provide compact and efficient urban areas where people can live at reasonable cost. The state Land Use Commission membership is composed of seven private citizens plus the director of the Department of Land and Natural Resources and the director of the Department of Planning and Economic Development. The commis- sion has carried out the instructions of the statute by dividing the state into four districts: urban, rural, agricultural and conservation. CONTROLS AND CRITERIA -78- The urban districts include urban areas and enough land to accommodate urban growth for ten years. Rural districts generally contain low-density residen- tial development on lots of at least one-half acre. The agricultural dis- tricts cover both crop and grazing land as well as agriculturally-oriented industry. Two-thirds of the conservation districts are publicly-owned Forest and Water Reserve Zones. The other third is private land primarily in moun- tainous areas. The commission controls urban growth by designating the boundaries for the urban districts. Intensive development can only occur in these areas. In ef- fect, both state and county approval are necessary for development in urban areas. Uses permitted in the urban districts are under county zoning regu- lations, and a county could zone a portion of an urban district for agricul- tural uses. The use of lands in the rural and agricultural districts is governed by Land Use Commission regulations. The commission decides on requests for boundary changes and special permits under a tight time schedule established by statute. The appropriate county planning agency must review each petition and the com- mission holds public hearings in the county where the land is located. Count- ies may issue special use permits in these districts subject to final approval by the commission. The Department of Land and Natural Resources has sole regulation over use in the conservation districts. Currently, the department divides the conserva- tion area into two general subzones, a Restricted Watershed zone and a general use zone. Uses allowable in the general use zone include residences, resorts, hotels, golf courses, marinas, etc. The governing body of the department passes on all applications for special use permits in the conservation zones. -79- ASSESSMENT The commission does not have guidelines from a master plan to aid its decis- ion-making process. Hawaii adopted a state plan in 1960. However, the rapid population growth and economic changes that have taken place since then have made the 1960 plan obsolete. The state completed a revision of the plan in 1967, but the planners specifically avoided setting land use policies. The state planners indicated that the commission was responsible for land use planning. However, while the commission has been directed to plan, it has not been given any planning capability. The commission's planning activity is largely limited to setting boundary lines for the rural and agricultural dis- tricts. The commission's staff is quite small and the staff size limits the enforce- ment capability. The commission does not attempt to follow up on permits to see that conditions and restrictions are obeyed, and it does not check on de- velopment undertaken without a permit. The statute directs the counties to car- ry out enforcement, but it is difficult to determine the degree of enforce- ment. Violations of the law are punishable by a fine of not more than $1,000. Each day of the violation is considered a separate offense. The tax policies and land use policies of the state often appear to conflict with each other. Hawaii has two tax laws which affect land use policies. Land is taxed at a higher rate than buildings, to encourage improvement of urban land. This approach is consistent with the narrow urban limits policy of the Land Use Commission but it may have contributed to excessive congestion. The tax laws allow a land owner to obtain lower assessments by dedicating his -80- property to agricultural use. To obtain this classification an owner must submit a request to the Department of Taxation. The determination of the request is based "upon the productivity ratings of the land in these uses for which it is best suited, a study of the ownership, size of operating unit and present use of surrounding similar lands and other criteria as may be ap- propriate." Land in proximity to existing urban areas is the only land likely to be dedi- cated. Dedication of this type of land may limit the commission's ability to control orderly urban expansion. "Unless land is dedicated the statutory direction that the assessors give consideration to the land use classifica- tions set by the Land Use Commission has apparently had little effect. In addition, the tax laws have been criticized for permitting the dedication of land for agricultural purposes in districts zoned urban by the Land Use Com- mission, thus defeating the purpose of the Land Use Law. "* Tourism and urbanization have had an important impact on implementation of the law. The law has been administered to strongly encourage the develop- ment of tourist facilities in many natural or agricultural areas of the state. The state has attempted to guide this development to preserve the natural en- vironment. The commission has tried to limit other types of new development to areas next to urban zones. This policy has prevented urban sprawl. However, it has also produced a rapid increase in housing costs. This policy has created a shortage of land and forced development into areas where site improvement costs are high. "The land shortage has furthermore resulted in an absence of competition, thereby encouraging each segment of the housing industry to increase its profit margin. The overall consequence is that housing costs *Fred Bosselman and David Callies, The Quiet Revolution in Land Use Control, Council on Environmental Qualitv. 1972, p. 32. -81- in Hawaii are most than double the national average. ** Hawaii's present situation causes strong conflicts between development and conservation. The Land Use Law provides a method for the state to resolve these conflicts on the basis of a statewide policy. "The decision-making process would probably be more effective, however, if more closely-tied to a state planning process that provided the regulators with more current data and better analysis of the relevant policy considerations. "** VERMONT ADMINISTRATION In 1970, the Vermont legislature passed an act requiring statewide land use planning to govern all essential aspects of growth. The Land Use and Develop- ment Act, known as Act No. 250, is designed to promote environmental objec- tives as well as social and economic aims. It sets up an Environmental Board and nine district commissions to draft and enforce a plan. The plan is enforced by use of permits, which are required for subdivisions of ten or more lots and for commercial and industrial developments. At the time the law was passed there was little local zoning in Vermont. De- velopments over one acre require a permit if they are located in an area with no local zoning. This feature of the legislation is an incentive to local governments to define their land use objectives and set up zoning controls. The law establishes a state/local partnership in which the state controls the larger developments and those areas outside local government jurisdiction. It encourages the local governments to control the smaller, in-town develop- ments. *Fred Bosselman and David Callies, The Quiet Revolution in Land Use Control - Summary Report, Council on Environmental Quality, p. 6. **Bosselman and Callies, op. cit., p. 7. -82- The lack of local zoning in Vermont probably played an important role in enactment of this legislation. Local governments were not regulating the large-scale developments of vacation homes. The legislature was already concerned about the overall physical growth with- in the state when a proposed large-scale land development in southern Vermont became the focus of public interest. In response to citizens' objections, the Governor of Vermont appointed a study commission, known as the Governor's Commission on Environmental Control. The Commission's report, put out in January 1970, found that land development by large corporations had become a major activity in the state and posed an immediate threat to the state's en- vironment. Act No. 250, passed later that year, in part adopted the recommen- dations of the Commission. An Environmental Board and nine district commissions administer the Act. The Board is made up of nine members, all appointed by the governor. The Chair- man of the Board serves two years and the other members serve four years. The Act does not require that members represent any particular social or economic group. The nine District Environmental Commissions are sub-agencies of the Environ- mental Board. The jurisdictions of the district commissions follow county boundaries. Each commission has three members and these are also appointed by the governor. The Environmental Board sets policy and serves in a quasi-judicial manner to review the decisions of the district commissions. The district commissions carry out the day-to-day responsibilities. The Environmental Board may appoint a full-time executive officer and other -83- professional and administrative staff that it needs and can afford. The total amount spent annually on the land use program is $100,000. The legislation directs the Environmental Board to prepare three plans. The Interim Plan simply describes the present land uses and natural resources. The Capability and Development Plan is to be a guide to the coordinated, ef- ficient and economic development of the state including distribution of pop- ulation and uses of the land. Finally, the Land Use Plan will be a map indi- cating the results of the Capability and Development Plan. CONTROLS AND CRITERIA A permit system for commercial and industrial developments as well as sub- divisions is designed to ensure implementation of the land use plans. The Act states that business, individuals and government agencies must get a per- mit for: (1) The construction or improvement on a tract or tracts of land owned or controlled by a person, involving more than 10 acres of land within a radius of five miles of any point on any involved land, for commercial or industrial purposes, (2) The construction of improvements for commercial or industrial purposes on more than one acre of land within a municipality which has not adopted permanent zoning and subdivision bylaws, (3) Any housing or multi-family dwellings, condominiums or trailer parks which involve ten or more units and are owned or controlled by a person within a radius of five miles of any point on any involved land, or (4) Construction or improvements on a tract of land involving more than ten acres of land which is to be used for municipal or state purposes. (5) Construction or improvements for commercial, industrial or residential use above the elevation of 2,500 feet. -84- Permit applications are filed with one of the nine district commissions. The state Agency of Environmental Conservation and the County Foresters re- view all permit applications. The Agency of Environmental Conservation form- ulates its policy on each application and files a statement of its views with the appropriate district commission. A hearing is held after the Agency of Environmental Conservation gives the district commission its pre-hearing position paper. The commission must hold a hearing if anyone required to receive notice requests a hearing. Also an adjoining landowner may request a hearing. The law requires the permit applicant to give notice of his filing to any municipality where the land is located, any municipal or regional planning commission affected, any adjacent Vermont municipality, municipal or region- al planning commission of the land is located upon a boundary. The applicant must also publish a notice in the local newspaper. The commission may choose to order a hearing on its own. If no one requests a hearing and the commission does not order one, the commission must act on the application within 60 days after the application is filed, or the appli- cation is automatically approved. An applicant may appeal the commission's decision to the Environmental Board. The state appellate court would review any appeal from the Board's decision. The legislation states that before issuing a permit the district commission or board must find that the subdivision or development: (1) Will not result in undue water or air pollution. In making this deter- mination it shall at least consider: the elevation of land above sea level; -85- and in relation to the flood plains, the nature of soils and sub-soils and their ability to adequately support waste disposal; the slope of the land and the effects of effluents; the availability of streams for disposal of effluents; and the applicable health and water resources department regula- tions. (2) Does have sufficient water available for the reasonably foreseeable needs of subdivision or development. (3) Will not cause an unreasonable burden on an existing water supply, if one is to be utilized. (4) Will not cause unreasonable soil erosion or reduction in the capacity of the land to hold water so that a dangerous or unhealthy condition may re- sult. (5) Will not cause unreasonable highway congestion or unsafe conditions with respect to use of the highways existing or proposed. (6) Will not cause an unreasonable burden on the ability of a municipality to provide educational services. (7) Will not place an unreasonable burden on the ability of local govern- ments to provide municipal or governmental services. (8) Will not have an undue adverse effect on the scenic or natural beauty of the area, aesthetics, historic sites or rare and irreplaceable natural areas. (9) Is in conformance with a duly adopted development plan, land use plan or land capability plan. An application cannot be denied solely for criterion (5), (6) and (7). How- ever, the law clearly gives the Board and commissions wide discretion in at- taching conditions to the permit. Either public or private landowners may petition for variances from adopted -86- land use plans. Applicants request variances from the appropriate commission, which will hold a hearing if someone requests it. "No variance from the final Land Use Plan may be granted unless the Peti- tioner shows that: (1) the land is needed for a different use; (2) the land is useable for the proposed use; and (3) conditions and trends of development have so changed since the adoption of the existing classification as to warrant reconsideration." The Envir- onmental Board will set out more detailed regulations on the basis of these criteria. The commissions act on the petitions for variances on the basis of the Board's regulations. The applicant can appeal a denial to the Board and can subsequently appeal to Vermont's highest appellate court. ASSESSMENT There are several problem areas in the law and its implementation includ- ing exemptions from the law, the interaction of planning and regulation and policy implementation. The law does not cover pre-existing development plans and this factor means that unregulated development will continue in some areas of Vermont. The large acreage requirements do not take into ac- count the potential damage from strip development. Other types of exemp- tions do not bear any relation to the potential for damage. Even primitive recreational development requires a permit, but farming and forestry do not.** *Elizabeth Haskell, et. al., Managing the Environment, Woodrow Wilson Cen- ter for Scholars, 1971, p. 304. **Fred Bosselman and David Callies, The Quiet Revolution in Land Use Control, Council on Environmental Quality, 1971, p. 80. -87- The creation of new planning agencies has been one of the successes of the law, but the law does not specify which plans have priority. The Environ- mental Board's policy positions do not become a part of the state plans. The district commissions can comment on the plans, but they do not play any role in their preparation. Most of the planners view the plans as flexible instruments which must adopt to changing needs. However, many involved in the review process see the state and regional plans as zoning maps. Commission members and developers apparently will use the land use map just as a zoning map would be used. "The difference between planning in its traditional sense and planning having the augmented status provided by the Environmental Control Law accounts for con- siderable friction in the permit review process and for the deliberate pace at which the organization of the statewide planning process is proceeding. "* The sophistication of local parties to a hearing affects the nature of the adversary proceedings. One result of the law may be greater use of zoning controls and urban planning at the local level since the law doesn't apply to developments under acres in zoned towns and town planning is a requirement for permit issuance. "The Environmental Control Law has been part of a massive holding action by the State of Vermont, opposing unplanned random development until the state's policies and priorities could be revised to deal with the pressures. The effort began with expanded local powers, and when pressure continued to build without substantial local response, the Environmental Control Law and various administrative rulings... resulted. "** *Ibid., p. 82. **Ibid., p. 89. -88- Since the law's inception, the commissions have been evaluating develop- ment according to standards suggested by state agencies on a case-by-case basis. They have applied broader policies on the local and regional level and in some cases have enforced statewide policies. However, longer range plans must give the overall direction. "Despite its problems, the administration of the Law seems to be progress- ing well. The critical process, however, is the preparation of state plans that can provide both flexible guides for developers and standards for the regulators. The presentation of these plans in 1973 will provide the real test of Vermont's land regulatory system. MAINE ADMINISTRATION Maine has also established a set of statewide land use controls. In 1970, a statute gave the states' Environmental Improvement Commission extensive power to regulate land developments. Any development of 20 acres or more come under the jurisdiction of the Commission. Maine, like Vermont, has not had extensive local zoning and developers did not face restrictions in the way they used land. Recently, there has been a large increase in the number of developments, and second-home industry threatened to alter some of Maine's scenic areas. In addition, several com- panies proposed heavy industries near some of Maine's most valued natural sights. These two factors created the impetus for the legislation. The Governor appoints ten members to the Environmental Improvement Commis- sion for a period of three years. The membership must be made up of two rep- resentatives of manufacturing interests, two from municipalities, two *Ibid. -89- representing conservation interests, two representing the "public," and two must be knowledgeable about air pollution. The law authorizes an administrative staff and a director. It also encour- ages the Commission to utilize the skills and knowledge of other state agen- cies. Total appropriations for the Commission in FY 1971 were just over $1 million. These appropriations included $85,000 specifically for land use control. The Commission's responsibilities other than land use control are: (1) Recommendation of new water quality standards to each legislature; (2) Supervision of the waste treatment plant construction program and pro- vision of technical assistance on waste control to industries and towns; (3) Promulgating ambient air and emission standards for the legislature to act on; (4) Enforcement of all regulations under its jurisdiction; (5) Establishment and maintenance of standards for the operation of muni- cipal waste treatment plants; (6) Approval of plans for proposed municipal drainage systems; (7) Rule on applications for variances from air and water quality standards; (8) Register sources of air contamination; and (9) Undertake research in waste disposal. CONTROLS AND CRITERIA In land use control, the law instructs the Commission to control the location of large developments SO that "such developments will be located in a manner which will have a minimal adverse impact on the natural environment of their surroundings." The statute justifies state level control by stating that "many developments because of their size and nature are capable of causing -90- irreparable damage to the people and the environment in their surroundings and that the location of such developments is too important to be left only to the determination of the owners of such developments." The method for achieving control over proposed developments is the permit sys- tem. The Commission requires a permit from the following types of develop- ment: (1) A commercial or industrial development occupying 20 acres or more; and (2) A development which includes drilling or excavating of natural resources. The Act excludes logging which is Maine's major industry. However, it clear- ly includes industrial facilities such as factories, major commerce such as shopping centers and large housing developments. The Act is not clear wheth- er a development by a public agency requires a permit. A developer with plans coming within the statutory jurisdiction must file a permit application with the Commission. Within 14 days, the Commission must either call for a hearing or approve the application. The Commission's dis- cretion is limited to four factors: (1) "The financial ability of the developer to fully complete the project, including facets such as solid and liquid waste disposal and water supply; (2) "The ability of the project as planned to avoid the hindrance of traf- fic movement and provide adequate parking and loading areas; (3) "The proposed development has made adequate provision for fitting it- self harmoniously into the existing natural environment and will not adver- sely affect existing uses, scenic character, natural resources or property values in the municipality or in adjoining municipalities; and (4) "That the development will be consistent with the type of soil involved. "* *Elizabeth Haskell, Managing the Environment, p. 326. -91- An applicant can appeal the Commission's decision to the Supreme Judicial Court within 30 days. The law does not deal with the question of appeal from orders placing conditions without a hearing. The statute appears to permanently preclude any heavy industry or deep and surface mining from previously undeveloped areas. Mining and heavy industry cannot locate in an area without adversely affecting "existing uses, scenic character or property value in adjoining municipalities. II Documented legislative history does not clarify the meaning of this language. The leg- islature may have intended to limit heavy industry and mining to areas already contaminated by such activity. The statute defines natural environment to include: "the character, quality and uses of land, air, and waters in the area likely to be affected by such development, and the degree to which such land, air and waters are free from non-naturally occurring contamination." However, "if the legislature did intend to limit future heavy industry or min- ing to their present locations, and preserve those areas where the environ- ment is now 'free from non-naturally occurring contamination,' then the stat- ute does not make this clear. 11* ASSESSMENT The Commission has assigned only one staff member and an assistant to proces- sing the permit applications. Because of the limited budget, the Commission does not have staff to investigate information in permits nor to follow up on enforcement of conditions in permits it issues. However, the staffs of other state agencies assist the Commission during the permit review process. The law has created much public interest; and, because of this, the Commis- sion generally learns of new development activity. The Commission is appar- ently limiting its focus to particular areas and types of development. It *Ibid., p. 326. -92- processed only 136 applications in its first 15 months. The small number in- dicates the Commission's selectivity. "Thus, for example, waste-discharge licenses for emissions into existing sewer systems have been required only where the effluent increased the load 'significantly,' i.e., by 25 per cent or more. In general the Commission is exercising its jurisdiction within urban areas only to a limited degree. The primary control problem is the lack of a check procedure once the Commis- sion issues permits. The failure to verify that conditions attached to per- mits have been met has made it difficult for prospective real estate buyers. They cannot determine if the property has been developed according to the law. There have been only a few proposals for heavy industry. The State's Depart- ment of Economic Development encourages light industry rather than heavy in- dustry to come to Maine. Consequently, the Commission's real workload has been the processing of permits for residential subdivisions. As of August 5, 1971, 83 per cent of the applications processed by the Commission have been for the construction of housing, about half of these for seasonal housing. "** The Commission's decisions on permits may be aggravating the state's housing shortage. Mobile home sales are leading permanent home sales three to one. Some friction has developed between the Commission and local reviewing agen- cies when the locality thought it was more capable of evaluating an applica- tion. Normally, however, the state and local agencies have not come into conflict. "The existing harmony between state and local government undoubtedly stems from the fact that much of Maine is wholly without land use controls. *Fred Bosselman and David Callies, op. cit., p. 196. **Fred Bosselman and David Callies, op. cit., p. 198. -93- Only one-third of Maine's townships are 'organized' into municipal corpora- tions, and of these, only 15 per cent are zoned. "* Finally, there is no overall state plan. "The major question for the future is whether the state can expand the Site Location Law into a more comprehen- sive land regulatory system that leaves the local issues to local governments but deals with major development proposals in the framework of a broader con- ception of state planning than the current Law contains. "** STATEWIDE CRITERIA AND STANDARDS Several states have enacted legislation which guide the land use decisions of local agencies. In effect, the state sets up the criteria on which local agencies base their decisions or the state draws up land use controls for those areas of the state which are not regulated. Three states that have taken this approach are Colorado, Oregon and Washington. COLORADO ADMINISTRATION The state legislature passed three bills in 1971 collectively called the Col- orado Land Use Act. The bill passed because there was considerable concern over new construction of recreational and second-home development. The legislation did several things to increase the effectiveness of planning in Colorado. The Land Use Commission was created in 1970. This Act increased the Commission's membership from seven to nine, and it established an advis- ory committee made up of representatives from commerce, industry, agriculture, conservation and natural resources together with four members of the General *Ibid., p. 198. **Ibid., p. 199. -94-

Page data

Page
1
Source index
0
Type
document
Media ID
3305969bc7e00e6a
Size
unknown

Document data

ID
118564994
Core
doc
Type
document
DTO data 
{
    "id": "118564994",
    "sourceUrl": "https://catalog.archives.gov/id/118564994",
    "contentType": "document",
    "title": "[Environment] - Preservation and Management of Californiaäó»s Coastline, September 1972 (1 of 3)",
    "citationUrl": "https://catalog.archives.gov/id/118564994",
    "identifierLocal": "840",
    "collections": [
        "Ronald Reagan's Governor's Papers of the Press Unit",
        "Reports"
    ],
    "iiifBase": "https://s3.amazonaws.com/NARAprodstorage/lz/presidential-libraries/reagan/7408629/40-840-7408629-P36-003-2017.pdf",
    "thumbnailUrl": "https://s3.amazonaws.com/NARAprodstorage/lz/presidential-libraries/reagan/7408629/40-840-7408629-P36-003-2017.pdf",
    "largeImageUrl": "https://s3.amazonaws.com/NARAprodstorage/lz/presidential-libraries/reagan/7408629/40-840-7408629-P36-003-2017.pdf",
    "imageCount": 1,
    "hasImages": true,
    "source": "import",
    "hasTranscription": false
}

Context sent to Scholar

Document identity 
{
    "localId": "118564994",
    "label": "[Environment] - Preservation and Management of Californiaäó»s Coastline, September 1972 (1 of 3)",
    "core": "doc",
    "dtoType": "document",
    "citationUrl": "https://catalog.archives.gov/id/118564994"
}
Document source metadata 
{
    "id": "118564994",
    "sourceUrl": "https://catalog.archives.gov/id/118564994",
    "contentType": "document",
    "title": "[Environment] - Preservation and Management of Californiaäó»s Coastline, September 1972 (1 of 3)",
    "citationUrl": "https://catalog.archives.gov/id/118564994",
    "identifierLocal": "840",
    "collections": [
        "Ronald Reagan's Governor's Papers of the Press Unit",
        "Reports"
    ],
    "iiifBase": "https://s3.amazonaws.com/NARAprodstorage/lz/presidential-libraries/reagan/7408629/40-840-7408629-P36-003-2017.pdf",
    "thumbnailUrl": "https://s3.amazonaws.com/NARAprodstorage/lz/presidential-libraries/reagan/7408629/40-840-7408629-P36-003-2017.pdf",
    "largeImageUrl": "https://s3.amazonaws.com/NARAprodstorage/lz/presidential-libraries/reagan/7408629/40-840-7408629-P36-003-2017.pdf",
    "imageCount": 1,
    "hasImages": true,
    "source": "import",
    "hasTranscription": false
}
Document source extras 
{
    "url": "https://catalog.archives.gov/id/118564994",
    "naId": 118564994,
    "coverageEndDate": {
        "logicalDate": "1975-12-31",
        "year": 1975
    },
    "coverageStartDate": {
        "logicalDate": "1967-01-01",
        "year": 1967
    },
    "levelOfDescription": "fileUnit",
    "recordType": "description",
    "ocrSource": "nara-archive"
}
Page context 
{
    "seq": 1,
    "pageIndex": 0,
    "type": "document",
    "url": "https://s3.amazonaws.com/NARAprodstorage/lz/presidential-libraries/reagan/7408629/40-840-7408629-P36-003-2017.pdf",
    "mediaId": "3305969bc7e00e6a",
    "ocrText": "Ronald Reagan Presidential Library\nDigital Library Collections\nThis is a PDF of a folder from our textual collections.\nCollection: Reagan, Ronald: Gubernatorial Papers,\n1966-74: Press Unit\nFolder Title: [Environment] - Preservation and\nManagement of California's Coastline,\nSeptember 1972 (1 of 3)\nBox: P36\nTo see more digitized collections visit:\nhttps://reaganlibrary.gov/archives/digital-library\nTo see all Ronald Reagan Presidential Library inventories visit:\nhttps://reaganlibrary.gov/document-collection\nContact a reference archivist at: [email protected]\nCitation Guidelines: https://reaganlibrary.gov/citing\nNational Archives Catalogue: https://catalog.archives.gov/\nPRESERVATION and MANAGEMENT\nof\nCALIFORNIA'S COASTLINE\nA Critical Analysis of The California\nCoastal Zone Conservation Initiative of 1972\nKAHL ASSOCIATES and\nRALPH ANDERSEN AND ASSOCIATES\nPRESERVATION AND MANAGEMENT\nOF CALIFORNIA'S COASTLINE\nA CRITICAL ANALYSIS OF THE CALIFORNIA\nCOASTAL ZONE CONSERVATION INITIATIVE OF 1972\nSeptember, 1972\nPrepared by:\nKAHL ASSOCIATES - Research Consultants\nSuite 805\nGovernment and Public Affairs\n1101 17th Street, N. W.\nWashington, D. C. 20036\nRALPH ANDERSEN AND ASSOCIATES\nP.O. Box 13278\nSacramento, California 95813\nTechnical Support in Selected Areas Provided By\nThe Government Research Company\nWashington, D. C.\nTable of Contents\nPage\nIntroduction\n1\nTHE LEGAL PERSPECTIVE.\n5\nLand Use Planning\n5\nGeneral\n5\nNational Land Use Planning\n5\nState Land Use Planning and Regulation\n8\nRegional and Metropolitan Planning\n10\nPolice Power\n12\nBasic\n12\nZoning\n13\nSubdivision Regulations\n15\nBuilding and Housing Codes\n17\nInitiative and Referendum\n18\nConstitutional Limitations\n19\nPolice Power V. Inverse Condemnation\n20\nPre-emption\n23\nSummary\n23\nSUMMARY OF THE CALIFORNIA COASTLINE INITIATIVE\n25\nSummary of Provisions\n25\nWho Would Serve on the Commissions?\n25\nWhat Would the Commissions Do?\n29\nWhat is the Nature of the California Coastal Zone\nConservation Plan?\n30\nHow Would the Interim Permit Procedure Work?\n32\nGeneral Provisions\n32\nSpecific Review and Appeal Procedures\n37\nOther Provisions\n38\nAmendments\n38\nTermination\n38\nConflict of Interest\n38\nPenalties\n39\nCURRENT POLICIES AND PROGRAMS FOR LAND USE CONTROL\nThe Federal Role\n40\nManagement Programs\n41\nBureau of Land Management\n42\nFish and Wildlife Service\n43\nNational Park Service\n44\nForest Service\n44\nTransfer of Federal Lands to State and Local\nGovernments\n44\ni\nPage\nInter- and Intra-Governmental Cooperation\n45\nEnvironmental Protection Act.\n47\nRegulatory Programs\n48\nCorps of Engineers\n48\nCoast Guard\n49\nAtomic Energy Commission\n49\nDevelopment Programs\n50\nTransportation\n50\nAdministration\n50\nBudget\n51\nProposed Changes\n51\nWater and Sewer\n52\nOffice of Water Programs\n52\nDepartment of Housing and Urban Development\n53\nPublic Facility Loans\n53\nEconomic Development Administration\n54\nFarmers Home Administration\n55\nOther Development Programs\n56\nPlanning Programs\n57\n701 Planning Program\n57\nAuthority\n57\nAdministration\n58\nState Agencies\n58\nBudget\n58\nProposed Changes\n59\nOutlook\n59\nWater Resources Planning Council\n59\nAuthority\n59\nAdministration\n60\nBudget\n60\nBureau of Outdoor Recreation\n60\nEconomic Development Administration\n61\nLegislation\n61\nLand Use Policy and Assistance Act of 1972\n(S632)\n62\nSanctions\n63\nFederal Role\n64\nInter-Agency Cooperation\n64\nFederal-State Cooperation\n64\nState-Local Role\n65\nOutlook\n66\nNational Land Policy and Management Act of\n66\n1972 (HR 7211)\n66\nPrivate Lands\nii\nPage\nPublic Lands\n67\nReview of Public Lands\n68\nOutlook\n68\nNational Resource Lands Management Act (S2401)\n69\nNational Coastal Zone Management Act (S3507)\n69\nAdministration\n70\nBudget Authorization\n71\nFederal-State Cooperation\n71\nCoastal Zone Management Act (HR 14146)\n71\nOutlook\n72\nSummary of Legislation\n72\nThe State Role\n76\nIntroduction\n76\nDirect Statewide Control\n77\nHawaii\n77\nAdministration\n77\nControls and Criteria\n78\nAssessment\n80\nVermont\n82\nAdministration\n82\nControls and Criteria\n84\nAssessment\n87\nMaine\n89\nAdministration\n89\nControls and Criteria\n90\nAssessment\n92\nStatewide Criteria and Standards\n94\nColorado\n94\nAdministration\n94\nControls and Criteria\n95\nAssessment\n97\nDirect Statewide Control in Selected Areas\n97\nMassachusetts\n97\nAdministration\n97\nControls and Criteria\n100\nAssessment\n102\nDelaware\n103\nAdministration\n103\nControls and Criteria\n105\nAssessment\n107\nOther States With Selective Controls\n107\nCritical Areas\n107\niii\nPage\nWetland and Shoreland Laws.\n109\nPower Plant Siting\n111\nStatewide Criteria and Standards in Selected Areas.\n111\nWisconsin\n111\nAdministration\n112\nControls and Criteria\n113\nAssessment\n115\nFlorida\n117\nAdministration\n117\nControls and Criteria\n119\nAssessment\n121\nSummary - State Approaches to Land Use Control\n122\nThe California Experience\n128\nIntroduction\n128\nCities and Counties\n129\nAuthority\n129\nPlanning\n129\nZoning.\n133\nOpen Space Planning\n135\nSubdivision of Land\n135\nRenewal and Redevelopment\n139\nAnnexation\n140\nProgram\n140\nGeneral Planning Programs\n140\nSpecial Planning Programs\n143\nPreparation of Special Beach, Waterfront,\nor Coastal Plan\n144\nAdoption of Special Zoning Ordinances for\nthe Coastal Zone\n144\nPreparation of Special Coastal Studies\n146\nAcquisition and Development\n146\nOutlook\n146\nPublic Initiatives\n147\nActions by Local and State Agencies\n148\nRegional Agencies\n152\nBay Conservation and Development Commission\n153\nAuthority\n153\nProgram\n154\nDifferences Between BCDC and the California\nCoastline Initiative\n155\nTahoe Regional Planning Agency\n158\nAuthority\n158\nProgram\n160\nDifferences Between the Tahoe Regional Agency\nand the California Coastline Initiative\n161\niiii\nPage\nVentura - Los Angeles Mountain and Coastal\nStudy Commission\n162\nAuthority\n162\nProgram\n164\nOutlook\n164\nLocal Agency Formation Commissions\n165\nCouncils of Government\n166\nAuthority\n167\nProgram.\n167\nOutlook.\n170\nState Agencies\n171\nOffice of Planning and Research\n171\nCouncil on Intergovernmental Relations/Office of\nIntergovernmental Management\n175\nState Lands Commission\n176\nDepartment of Parks and Recreation\n178\nDepartment of Navigation and Ocean Development\n183\nDepartment of Public Works\n185\nDepartment of Water Resources\n188\nDepartment of Fish and Game\n190\nWater Resources Control Board\n192\nPublic Utilities Commission\n193\nDepartment of Conservation\n196\nDepartment of Public Health\n197\nOther\n197\nANALYSIS OF INITIATIVE PROVISIONS.\n199\nWhat is the Coast?\n201\nExclusion of Urban Areas\n216\nEffect on Comprehensive Planning\n219\nEffect on Public and Private Development\n231\nRepresentation of Local Areas\n243\nLack of Uniformity\n245\nAdministrative Problems\n248\nFiscal Impact\n251\nEffect on Acquisition and Improvement of the Shoreline\n254\nSummary of Proposed Beach and Shoreline Expenditures\nto 1990\n259\nConclusion\n263\nCONCLUSION\n268\nAPPENDIX\n276\nText of California Coastal Zone Conservation Act\nInitiative\n1\nCOAP Summary - Coastal Land Use and Ownership\n22\nCity of Long Beach Statistics for Initiative Permit Area\n26\niiiii\nMAPS\nPage\nCalifornia State Park System\n182\nInitiative Planning and Permit Areas\nLos Angeles and Orange Counties\n204\nPermit Area as Defined by City of Long Beach\n206\nDifficulties with Definitions of \"Planning Area\"\nand \"Permit Area\"\n210\nComparison of BCDC Permit Area with Initiative\nPermit Area for San Francisco Bay Area\n212\nMajor Rivers and Waterways\n213\nComparison of SCAG Boundaries with Initiative\nRegional Commission Boundaries\n228\nComparison of ABAG Boundaries with Initiative\nRegional Commission Boundaries\n229\niiiiii\nINTRODUCTION\nINTRODUCTION\nA National and State policy for land use planning and control is now emerg-\ning.\nThe basic premise of this policy is that land can no longer be treated sol-\nely as a commodity to be used only at the discretion of a private owner.\nRather, land is now being increasingly viewed as a scarce resource and de-\ncisions affecting its use are of public concern because they establish pat-\nterns which can have a significant and comprehensive impact on entire reg-\nions, the State and the Nation. The control of land use is no longer viewed\nas the sole prerogative of local government.\nIt is becoming increasingly recognized that land use decisions are a part of\nthe larger public decision-making process and must be balanced against other\nbroad public goals, whether they be social, economic or environmental.\nCalifornia voters will be presented in November with a statutory initiative\nwhich proposes to preserve California's coastal resources by severely limit-\ning all forms of development.\nThe Initiative proposes the creation of a Coastal Zone Conserva-\ntion Commission and six regional commissions to prepare a coastline\nplan for an irregular \"Coastal Zone\" and to closely regulate\ndevelopment activities by a permit system applied to a 3000 foot\nshoreline band as well as bays, estuaries and other areas subject\nto tidal action, including a 1000 foot strip up many rivers and\nwaterways.\nDevelopment as defined in the initiative is not limited. The\nterm would include:\nPlacement or erection of any solid material or structure;\n-1-\nDischarge or disposal of any dredged material\ngaseous,\nliquid or thermal waste\nextraction of any material;\nChange in density or intensity of use of land\ninclud-\ning lot splits;\nChange in the intensity of use of water;\nAlteration of the size of any structure\nAuthority to grant permits for all forms of development is limited by\nstringent environmental criteria.\nMost authorities consider the question of land use as extremely complex\nand involving basic issues of property rights, the proper role and author-\nity of local, state and federal governments, competing public goals, citi-\nzen representation, tax policies and maximizing resources for the greatest\npublic benefit.\nThe Initiative attempts to confront these issues by focusing on a single-\npurpose approach for resolving them on behalf of the highly desirable pub-\nlic goal of environmental preservation. But the question of how to best man-\nage California's coastal resources remains difficult to answer. Consequent-\nly, the voter is being asked to decide some fundamental questions:\nHow can California best manage its coastal resources for\nmaximum public benefit? Is it desirable to further com-\nplicate public decision-making by adding to the confusing\nmultiplicity of jurisdictions? Is there a better way to\nensure that the important and critical questions are re-\nsolved to the advantage of regional, statewide and nation-\nal interests rather than local parochial needs?\n-2-\nWhat perspectives are relevant to decisions relating to\nland management. Can they be better integrated into a\ncomprehensive system which brings balance to the priori-\nties of many functional programs and needs of different\nbut related geographic areas?\nHow can the needs of the environmental crisis be balanced\nagainst meeting the resource needs of other crises fac-\ning our nation: energy, mass transportation, housing,\nunemployment, taxation and delivery of essential social\nservices?\nWhat limitations should be placed upon individual prop-\nerty rights of ownership and use in order to achieve a\nstated \"higher public goal\"? Since limits on land sharp-\nly affect value, what constitutes citizen grievances\nagainst \"inverse condemnation\" and \"taking without com-\npensation\"?\nWhat are the effects of land use restrictions on the loc-\nal property tax base? How can revenue losses to local\ngovernment and school districts be equalized or replaced?\nWill California's statewide interests be adequately re-\nflected in land use decisions by regional commissions?\nWill these decisions be in concert with essential state\nenvironmental improvement and resource planning programs\nnow in process?\nThese questions are of particular importance because of provisions contained\nin the Initiative which prohibit its repeal and effectively prevent its\n-3-\namendment by the Legislature.\nAnswers to questions such as those posed above are important because they\nprovide some indication of the ability of the Initiative to assure addition-\nal preservation of California's environmental resources. However, they are\nalso important because they indicate to what extent the Initiative will en-\nhance or detract from the goals and aspirations of all citizens regarding\ntheir quality of life in general. Because we are dealing with an increas-\ningly complex and interrelated society each proposal for basic change, such\nas that represented by the coastal initiative, must be evaluated in terms\nof what it contributes to or detracts from the achievement of these social\ngoals.\nThe California Coastal Zone Conservation Act Initiative will be analyzed in\nsubsequent pages. Prior to this, however, an overview of related legal is-\nsues and an insight into existing federal, state, and local activities in\nthe coastal area is presented in order to indicate the legal and governmen-\ntal framework within which coastal programs are presently undertaken.\n-4-\nLEGAL\nTHE LEGAL PERSPECTIVE\nLAND USE PLANNING\nGENERAL\nLand use planning is concerned principally with the physical environment.\nIts objective is to provide for the orderly use and development of land\nin the best interest of the public health, safety and welfare and to fac-\nilitate the achievement of social and economic objectives, and the protec-\ntion of natural resources. Land use planning in the first half of the\nnineteenth century was almost entirely a function of local governments.\nThe principal sources of land controls have been zoning and subdivision\nlaws enacted under the police power. Other means of regulating land use\ninclude the power of eminent domain for acquisition of private land for\npublic use, building and housing regulations, urban renewal and redevelop-\nment laws. More indirectly, but of perhaps even greater importance are\nthe effects of taxation, and annexation and incorporation laws on land use.\nIn recent years, the extent of land use planning by other levels of govern-\nment has grown greatly. National, state and regional involvement in land\nuse planning is increasing rapidly and constitutes a major determinant of\nland use controls. A brief review of the authority of federal, state, and\nregional entities will provide a perspective within which to examine the\nlegal powers and limitations with respect to the regulation of land develop-\nment.\nNATIONAL LAND USE PLANNING\nAlthough the U.S. Constitution confers no expressed general power on Congress\nto regulate the use of private lands, the power of the federal government\n-5-\nover land use planning and development is extremely broad. Article IV, Sec-\ntion 3, cl. 2 of the Constitution states that, \"The Congress shall have pow-\ner to dispose of and make all needful rules and regulations respecting the\nterritory or other property belonging to the United States The term\n\"territory\" includes lands, and the power of Congress to control federal lands\nis unlimited. United States V. Gratist, 39 U.S. (14 Pet.) 526 (1840).\nAuthority of Congress over federally owned lands has been a principal factor\nin determining land use since approximately one-third of the land in the\nUnited States is owned by the federal government. Federal policy with re-\nspect to public lands had a strong influence on early planning and develop-\nment of local communities. The basic grid system of the early federal land\nsurvey was followed in local planning. Federal land grants to promote devel-\nopment of roads and railroads, disposition of lands under the Homestead Act\nof 1862, and now the management of federal lands by such agencies as the Bur-\neau of Land Management, U.S. Forest Services, Bureau of Reclamation, National\nPark Service, and the Federal Power Commission have had a major impact on\nland use planning and development.\nPrincipal federal impact on land use has resulted from federal grant and loan\nprograms to encourage state, regional and local planning, such as those pro-\ngrams under the Department of Housing and Urban Development, the several fed-\neral housing acts, transportation acts, highway acts, air and water quality\nacts, and federal urban renewal assistance acts. Authority of Congress in\nsuch areas derives principally from the general welfare clause, Article 1.\nSec. 8, cl. 1 of the U.S. Constitution, which states that, \"The Congress\nshall have power to lay and collect taxes, duties, imports and excises, to pay\nthe debts and provide for the common defense and general welfare of the United\nStates.\" This power is analagous to the general police power of the states.\n-6-\nOther matters may be regulated by the federal government under the express\npowers given to Congress over commerce (Art. I, Sec. 8, cl.1) and defense\n(Art. I., Sec. 8, cl.11-16).\nValidly enacted federal laws supercede or pre-empt local laws which are in\nconflict. Article 6, cl.2 of the Constitution, the \"supremacy clause\", pro-\nvides that the Constitution and the laws of the United States which are made\nin pursuance thereof constitute the supreme law of the land. Therefore, the\nprovisions of a state law are invalid to the extent they are in conflict\nwith applicable federal law. On the other hand, state sovereignty is protec-\nted by the Tenth Amendment which provides that the powers not delegated to\nthe federal government, nor prohibited by the Constitution to the states, are\nreserved to the states, or to the people.\nThere is an increasing interest in development of a national land use policy.\nThere are presently more than 200 bills before Congress relating to land use\npolicy. Over the last several years Congress has developed numerous widely-\ndiffering programs and authorizations for land planning, management, and de-\nvelopment. Title VIII of The Intergovernmental Cooperation Act of 1968 con-\ntains the Federal Urban Land Use Act, which requires federal agencies to\ncoordinate land acquisition, disposal, and change of use in urban areas with\nlocal plans. The provisions of this Act are significant in determining\nwhether state planning legislation is applicable to federal agencies within the\nplanning area.\nAn example of land use policy likely to be enacted by Congress in the near\nfuture, is S. 632 authored by Senator Henry M. Jackson. The bill establishes\nnational land use goals and priorities and requires states to prepare state-\nwide land use plans. Such statewide plans must meet specified criteria and\n-7-\nguidelines. States may delegate to local governments planning and implemen-\ntation subject to the states' responsibility for approval and coordination of\nlocal plans and enforcement procedures. The state plan is subject to federal\nreview and must be consistent with the guidelines contained in the Act. The\nbill provides for termination of grants available under the bill when land\nuse programs fail to gain federal approval, and further provides for loss by\nthe state of airport funds, highway funds, land and water conservation funds,\nand other grants-in-aid for failure to have an approved land use program.\nIt appears clear that the California Coastal Zone Conservation Commission and\nthe regional commissions proposed to be created by Proposition No. 20 on the\nNovember 1972 California general election ballot would not meet the proposed\nguidelines for a comprehensive state planning agency, nor comply with the cri-\nteria set forth in the proposed federal act.\nSTATE LAND USE PLANNING AND REGULATION\nPrimary responsibility and constitutional authority for land use planning and\ncontrol rests in the state by reason of its police power. Even in those states\nwhich grant to cities and counties constitutional home rule, the grant of pol-\nice power is subject to the states' superior police power, and authority of\ncharter cities over municipal affairs is offset by the states' power over mat-\nters which are of \"statewide concern\". There would seem to be little ques-\ntion that preservation of the coastal shoreline and access to the ocean, reg-\nulation of water quality, air pollution, and the like are matters of statewide\nconcern.\nIn the case of offshore lands, Congress relinquished to the states all rights\nof the United States to \"lands beneath navigable waters\", including those\nlands within three miles seaward from the coastline of each state, by passage\n-8-\nof the Submerged Lands Act in 1953. The definition of \"coastal zone\" in\nthe California Initiative includes lands beneath navigable waters as defined\nin the Federal Act. The Submerged Lands Act reserves to the United States,\nhowever, all rights of the United States under its constitutional authority\nto regulate or improve navigation, to provide for flood control, or the pro-\nduction of power. (43 U.S. C.A. 1311(d).) The Act also provides that the\nUnited States retains all its rights and powers of regulation and control\nof such lands and navigable waters for the \"constitutional purposes of com-\nmerce, navigation, national defense, and international affairs, all of which\nshall be paramount to, but shall not be deemed to include, proprietary rights\nof ownership, or the rights of management, administration, leasing, use,\nand development of the lands and natural resources 11 vested in the states.\n(43 U.S.C.A. 1314)\nHistorically, states have delegated to cities and counties zoning authority\nand authority to regulate divisions of land, reserving to itself limited pow-\ners in these areas. Similarly, cities and counties are authorized to enact\nhousing authorities and community redevelopment agencies. The reservoir of\npower rests in the state, however. In California, cities and counties are re-\nquired to enact general plans containing specified components and to enact\nzoning ordinances which must be consistent with those plans. The state pre-\nscribes the form, powers, and duties of local redevelopment agencies and hous-\ning authorities. It enacts statewide building and housing regulations with\nwhich local regulations must conform (with some provision for variance), and\nthe scope of authority of cities and counties over the subdivisions is limit-\ned by the State Subdivision Map Act, which is a grant of authority, rather\nthan a limitation on local authority.\nThere is an increasing involvement of states in land use control. A growing\n-9-\nnumber of states have adopted statewide land use plans since Hawaii led the\nway in 1961. As indicated above with respect to federal legislation, it ap-\npears likely that every state will be required to have a statewide land use\nplan and to exercise a greater degree of control over actual land use, con-\nsistent with a national land use policy. A discussion of the functions of\nCalifornia state agencies having direct and indirect responsibility for land\nuse planning and regulation is discussed elsewhere in this report.\nAn important provision of the California Constitution in Article XV, Sec. 2,\nprovides:\n\"No individual, partnership or corporation, claiming or possessing\nthe frontage or tidal lands of a harbor, bay, inlet, estuary, or\nother navigable water in this State, shall be permitted to exclude\nthe right of way to such water whenever it is required for any pub-\nlic purpose, nor to destroy or obstruct the free navigation of\nsuch water; and the legislature shall enact such laws as will give\nthe most liberal construction to this provision, so that access to\nthe navigable waters of the State shall be always attainable for\nthe people thereof.\"\nThe legislature has enacted legislation which provides that no city or coun-\nty shall approve a subdivision fronting upon the coastline or shoreline, or\nupon any lake or reservoir which is owned in part or entirely by any public\nagency unless there is reasonable public access to such waters. (Business\nand Professions Code S 11610.5, 11610.7.)\nREGIONAL AND METROPOLITAN PLANNING\nPlanning agencies that have less than statewide jurisdiction are frequently\nreferred to as \"regional\" agencies. In some cases such area-wide planning\n-10-\nagencies are established by the state, and in others they are authorized\nby the state. More frequently, such agencies are formed by agreement between\nlocal governmental entities and financially supported by the member agencies\nin the planning area. Almost every state authorizes regional planning. The\ncreation of regional planning entities and councils of government has been\ngiven impetus by federal aid programs which require review and approval by\nsuch regional bodies.\nFew such regional agencies have been given much regulatory power. Their\npower and authority is that granted to them by the state legislature, or that\ndenied from the agreement or contract between participating entities and lim-\nited by the common power which they share. In either case, the scope of their\nauthority and power is that delegated by the state. In California, there are\nagencies which exercise regulatory power on a regional basis, such as the San\nFrancisco Bay Conservation and Development Commission (Government Code S 66600,\net seq), and the Metropolitan Transportation Commission (Government Code S\n66500, et seq). State statutes also provide for area planning commissions\n(Government Code S 65600, et seq), planning districts consisting of two or\nmore counties (Government Code S 66100, et seq), and regional planning dis-\ntricts (Government Code S 65060, et seq). Councils of Government such as the\nAssociation of Bay Area Governments and the Southern California Association\nof Governments have been created pursuant to the Joint Exercise of Powers Act\n(Government Code S 6500, et seq), which provides that two or more public\nagencies by agreement may jointly exercise any power common to the contract-\ning parties. The Attorney General has ruled that such joint powers agencies\nmay not exercise zoning authority (Office of the Attorney General, indexed\nletter, October 13, 1970). There has been no court decision expressly clari-\nfying whether basic legislative powers such as the taxing power may be exer-\ncised by the joint entity.\n-11-\nIt is clear that there is a trend toward regional planning and to some ex-\ntent regional regulatory agencies exercising powers pursuant to a statutory\ngrant of power by the state legislature.\nPOLICE POWER\nBASIC POLICE POWER\nThe term \"police power\" denotes the power of government in every sovereignty;\nit is an inherent attribute of sovereignty, necessary to the conduct and\nmaintenance of government (McQuillin, Mun. Corp. 3d Ed. S 24.02). Essentially,\nthe police power is the power of government to regulate the conduct of its\ncitizens and the manner in which they use their property. It is inseparable\nfrom legislative power and must be exercised by a legislative body or by\nthe electorate, all legislative power being vested by the Constitution in\nthe people or the legislature. The United States, as a government of enumer-\nated powers, has no inherent general police power. The police power is re-\nserved to the states. (Hamilton V. Kentucky Distilleries and Warehouse Co.,\n251 U.S. 146.) The federal government in the exercise of its express powers ex-\nercises police power as an incident thereto, even though the exercise of such\npower constitutes an apparent invasion of the states' police power. The pol-\nice power is not susceptible of definition (Stone V. Mississippi, 101 U.S. 814);\nit is not rigid and fixed, but flexible. It is the broadest of governmental\npower, affecting all matters relating to the public health, safety, conven-\nience, order, morals, and general welfare. A characteristic of the police pow-\ner is that it is a reasonable assertion of public over private interests.\nIts lawful exercise necessarily interferes with individual rights. The\nright of an owner of property to use it as he chooses is subject to the pol-\nice power.\nThere are limitations on the exercise of the police power discussed more ful-\n1y below. It may not be exercised arbitrarily and must be exercised for a\n-12-\nvalid public purpose, and the means must be reasonably related to the achieve-\nment of that legitimate objective. The test is one of public necessity and\nreasonableness. Its exercise must operate uniformly and without arbitrary\nor abusive discrimination. It is only when exercise of the police power is\narbitrary, unreasonable, or an improper use that it becomes an invasion of\nconstitutional rights.\nCalifornia Constitution Article II, Sec. 7 provides:\n\"A county or city may make and enforce within its limits all local,\npolice, sanitary, and other ordinances and regulations not in con-\nflict with general laws.\"\nJust as the state police power is subject to the paramount authority of the\nUnited States Constitution, municipal police power is also subject to the\nsupremacy of state legislation.\nThe police power includes the power to zone, regulate subdivisions, regulate\nbuilding and housing, abate nuisances, and prevent and regulate air and wat-\ner pollution. Land use control generally involves an exercise of the police\npower.\nZONING\nZoning is an exercise of the police power which is inherent in each state.\nStates by and large have delegated the power to zone to cities and counties.\nThe California legislature has done so in Government Code S 65800. Local\nzoning is probably authorized under the general grant of police power to\ncities and counties. (Brougher V. Bd. of Public Works, 205 Cal. 426.) Zon-\ning power may be exercised by a charter city under its constitutional power\nover \"municipal affairs\". (Const. Art. XI, Sec. 5.) Whether or not a matter\n-13-\nis a municipal affair or a matter of statewide concern subject to the gener-\nal law is determined by the courts. (Bishop V. City of San Jose, 1 Cal. 3d.\n56.) The zoning provisions of the Government Code expressly excepted charter\ncities from their application unless adopted by the city (Government Code\nS 65803) until recently. Certain procedural requirements are now expressly\napplicable to charter cities.\nZoning is exercised for a number of different purposes. The California stat-\nutes contain no statement of purposes for which the zoning power may be exer-\ncised. A municipality does not have to support its zoning action by proving\na legitimate public purpose. There is a presumption of validity of the leg-\nislative action and, except in rare cases, the courts will not question the\nPurpose so long as reasonable. Zoning may be exercised to provide for orderly\ngrowth of the community, to provide for proximity of compatible uses, to\ncontrol traffic congestion, to maintain property values, to serve aesthetic\npurposes, to regulate density and prevent overcrowding, to provide for open\nspace, to increase the property tax base, and to provide neighborhood social\nand economic stability. Zoning has been upheld even though property values\nmay be diminished (Hamer V. Ross, 59 Cal. 2d. 776). The effect of zoning on\na particular parcel is generally not determinative of its validity. Complete\nelimination of the value of property as a result of zoning may be valid if\nfor a legitimate public purpose. (Consolidated Rock Products Co.\nV. Los Angeles, 57 Cal. 2d. 515.) This however raises the problem\nof inverse condemnation (see Page 20).\nZoning is a tool for implementation of the general plan and must\nbe \"consistent\" with the general plan. (Government Code S 658860.)\nThe purposes of zoning then may be more readily seen in terms of\nthe contents and requirements of the general plan.\nThere are limitations on zoning. \"Spot zoning\" is invalid where a parcel of\n-14-\nland is singled out for special treatment, or where the zoning is for the bene-\nfit of the landowner rather than the public interest generally. \"Spot zon-\ning\" out low income housing has been held invalid. (G & D Holland Construc-\ntion Co. V. Marysville, 12 Cal. 3d. 989.) A number of cases in several states\nhave invalidated zoning ordinances which did not provide for apartment dwel-\nlings, as a violation of the Equal Protection, on the ground that the effect\nof the zoning was to exclude one or more classes of persons. (In re Ginsh,\n263 A. 2nd. 395 (pa.)). Similarly, some cases have held that a zoning ordi-\nnance requiring minimum lot sizes of two and three acres was invalid. (Ap-\npeal of Kit-Man Builders; Inc. (1970), 268 A. 2nd. 765 (pa.)). Other cases\non similar facts have upheld the validity of zoning ordinances restricting or\nlimiting permissible uses, and questions of large-lot zoning and other alleged\n\"exclusionary\" provisions have not been settled.\nIt is clear that zoning ordinances must constitute a reasonable exercise of\nthe police power to achieve a legitimate public objective.\nSUBDIVISION REGULATIONS\nRegulations of subdivisions is a land use control based on the police power.\nZoning and regulation of subdivisions are the principal land use controls ex-\nercised by state and local governments. Like zoning, subdivision regulation\nis a tool for implementing planning. Recently enacted legislation in Calif-\nornia requires that subdivisions be consistent with applicable general and\nspecific plans. (Business and Professions Code S11526, 11549.5.) Subdivi-\nsion regulation is related to zoning but serves a different purpose. Zoning\nregulates the uses to which. property owners may develop their property, where-\nas subdivision regulations are concerned with whether property should be di-\nvided, the manner in which it should be divided, and the exactions which should\nbe imposed with respect to the total property as conditions of approval of\n-15-\nthe subdivision.\nThe power to regulate subdivisions is based in part on the theory that re-\nquirements may be imposed in exchange for the privilege of the subdivider to\ndevelop land for his own benefit. Conditions imposed on the subdivider are\nbased principally on the need for public facilities and improvements created\nby the subdivision and which would otherwise fall as a burden on the rest of\nthe community. Therefore, most state subdivision statututes have long author-\nized subdivision ordinances to require dedications and improvement of streets\nand utilities. The trend is to acquire additional exactions such as dedica-\ntion of lands for school sites and parks, or the payment of fees in lieu of the\ndedications.\nIn California the State Subdivision Map Act (Business and Professions Code\nS11500 et seq.) authorizes cities and counties to regulate the \"design\" and\n\"improvement\" of subdivisions and divisions of land which are not defined as\nsubdivisions so long as such regulations are not more restrictive than the re-\nquirements for a subdivision. The Act is a grant of authority and cities and\ncounties may impose only those conditions for approval of subdivisions which\nare authorized by the state act (Kelber V. City of Upland, 155 C.A. 2d 631).\nRecent amendments to the Subdivision Map Act have substantially broadened the\nauthority of local government to disapprove or conditionally approve divisions\nof land. Definitions of \"design\" and \"improvement\" have been expanded to in-\nclude \"such specific requirements in the plan and configuration of the entire\nsubdivision (and the installation of such specific improvements) as may be\nnecessary or convenient to insure conformity to or implementation of applicable\ngeneral or specific plans---\". The constitutionality of the statutory author-\nization and a local ordinance imposing a requirement for dedication of park-\nland or the payment of fees in lieu thereof was upheld in the California\n-16-\nSUMMARY OF INITIATIVE\nSupreme Court (hearing denied by the U.S. Supreme Ct.) in the case of Associa-\nted Homebuilders V. City of Walnut Creek, 4 C.A. 3d 645 (1971).\nThe subdivision map must be disapproved if the local legislative body deter-\nmines that the proposed subdivision is not consistent with applicable plans,\nthat the site is not physically suitable for the type or density of develop-\nment, that the design and improvements are likely to cause substantial en-\nvironmental damage or serious public health problems, or conflict with public\neasements for access.\nThe extent of the authority implicit in the latest amendments of the sub-\ndivision statutes has not been clearly defined and will undoubtedly be tested\nin the courts. It is clear, however, that the relationship between subdivision\nregulation and planning has been greatly strengthened. The validity of both\nzoning and subdivision regulations are now measured largely by their consis-\ntency with the provisions of comprehensive general plans. Unfortunately,\nthe planning procedure contained in the coastal zone initiative does not pro-\nvide for consistency between the coastal zone plan to be adopted and the cor-\nresponding general plans of cities and counties. Elements of the coastal zone\nplan may well be contrary to corresponding elements of local plans with the\nresult that development may be denied because it is inconsistent with one of\nthe plans although consistent with the other. The problem illustrates the\nneed for development of comprehensive land use planning, in which the elements\nof local plans are consistent with the corresponding elements of regional or\nstatewide plans.\nBUILDING AND HOUSING CODES\nBuilding regulations are an exercise of the police power and subject to the\nsame constitutional limitations as other exercises of the police power. Per-\nmits may be required before any construction is permitted and reasonable conditions\n-17-\nmay be attached to the issuance of such permits. Conditions which may be\nvalidly imposed are lot line set back requirements, minimum lot size, street\nor highway access, off-street parking, and the dedication of rights-of-way\nwhere reasonably related to the use of the property. (Southern Pacific Co.\nV. City of Los Angeles, 242 C.A. 2d 38.)\nIssuance of a building permit may not be arbitrarily denied. The general\nrule is that the applicant is entitled to the permit as a matter of right\nif he complies with the applicable statutory and code requirements. It is\nsettled, however, that a reasonable fee may be imposed for issuance of the\npermit and reasonable conditions imposed as indicated above.\nThe California State Housing Law requires the State to adopt rules and regu-\nlations imposing the same requirements as contained in specified uniform\nnational codes. Cities and counties must adopt regulations imposing the\nsame requirements as those adopted by the State, except that they may make\nsuch changes or modifications as they expressly find to be necessary because\nof local conditions.\nBuilding codes, although not a land use control as such, are related to plan-\nning, zoning and subdivision regulations. Building permits may be denied\nfor failure of the applicant to comply with applicable zoning and subdivision\nrequirements. An example of this is Government Code Sec. 65567 which pro-\nvides that no building permit may be issued and no subdivision approved un-\nless the proposed construction or subdivision is consistent with the local\nopen space plan.\nINITIATIVE AND REFERENDUM\nArticle IV, Section 1, of the California Constitution reserves to the people\nthe powers of initiative and referendum. The initiative is the power of the\n-18-\nelectorate to enact statutes, ordinances and amendements to the Constitution.\nThe referendum is the power of the electorate to nullify or reject statutes\nand ordinances or parts thereof following their enactment, with specified\nexceptions. Initiative and referendum powers may be exercised by the electors\nof cities and counties, and the procedure for general law cities is prescribed\nby the legislature.\nThe initiative and referendum apply to matters which are legislative in char-\nacter and clearly include exercise of the police power. Exercise of the ini-\ntiative by the local electorate is restricted to legislation which is within\nthe power of the local legislative body to enact. Recent cases have held that\nthe initiative may be used to amend zoning ordinances, although an older state\nsupreme court case holds to the contrary.\nThe California Constitution provides that an initiative statute becomes ef-\nfective the day after the election unless the measure provides otherwise,\nand that the legislature may amend and repeal an initiative statute by another\nstatute only when approved by a vote of the people unless the initiative\nstatute permits amendment or appeal without their approval. The coastal zone\ninitiative authorizes the legislature by a two-thirds vote to amend the act\nin order to better achieve the objectives stated therein, but it does not\nauthorize repeal of the act without a vote of the people.\nA statute or ordinance enacted by initiative is subject to the same constitu-\ntional requirements as a statute ordinance enacted by a legislative body.\nIt must yield to conflicting provisions of the State and U.S. Constitutions.\nCONSTITUTIONAL LIMITATIONS\nThe police power is limited by constitutional guarantees. It must not violate\n-19-\nprovisions of the United States Constitution or conflict with valid federal\nlaws. A reasonable exercise of the police power, however, does not violate\nconstitutional provisions even though it may interfere with individual per-\nsonal and property rights.\nThe principal constitutional guarantees against which state laws regulating\nland use must be balanced are the provisions of the Fifth and Fourteenth\nAmendments that no person shall be deprived of life, liberty or property with-\nout due process of law, nor private property be taken for public use without\njust compensation, and the equal protection provisions of the Fourteenth\nAmendment. The California Constitution contains contains similar guarantees.\nThe California Constitution provides that private property shall not be taken\nor damaged for public use without payment of just compensation. Unintended\nphysical injuries to private property may then result in inverse condemnation\nin violation of the \"or damaged\" clause of the California Constitution. A\npossibility of preemption is raised by the provisions of both the United States\nand California Constitutions that the U.S. Constitution and the laws enacted\npursuant thereto are the supreme law of the land.\nPOLICE POWER V. INVERSE CONDEMNATION\nThe initial question is whether there is a \"taking\" of private property for a\npublic use. An exercise of the police power to regulate or restrict the use\nand enjoyment of land is not compensable. It is only when government action\nconstitutes a \"taking\" that the power of eminent domain is involved and com-\npensation is required to be paid. The courts have used various theories to\ndetermine whether application of a statute constituted a taking. Short of\nan actual physical invasion of the property, there is no precise formula to\ndetermine where regulation ends and taking begins.\n-20-\nA municipal zoning ordinance prohibiting rock and gravel operations on\nthe plaintiffs property was upheld oven though the court found that the\nproperty had no appreciable economic value for any other purpose. It held\nthat the zoning ordinance was a proper exercise of the police power in fur-\ntherance of the best interests and general welfare of the community. (Con-\nsolidated Rock Products Co. V. City of Los Angeles, 57 C. 2d 515.)\nIn Candlestick Properties, Inc. V. San Francisco Bay Conservation and Develop-\nment Commission, 11 C.A. 3d 557, the Court of Appeal affirmed a judgement\ndenying the plaintiff a right to fill a parcel of land, holding that the\nrestrictions placed on the use of the land were a valid exercise of the police\npower and not a taking of property without just compensation. The Court,\nciting the Consolidated Rock case, stated, \"It is a well settled rule that\ndetermination of the necessity and form of regulations enacted pursuant to\nthe police power is primarily a legislative and not a judicial function, and\nis to be tested solely by the answer to the question, is there any reason-\nable basis in fact to support the legislative determination of the regula-\ntion's wisdom and necessity?\" (11 C.A. 3d 557, 571.) The Court held that\nthe statutes defining the public interest in protecting the bay establish a\nrational basis for the legislation, and held that, while \"an undue restriction\non the use of private property is as much a taking for constitutional pur-\nposes as appropriating or destroying it,\" that refusing to allow the property\nowner to fill his land was not an undue restriction. The Court applied a\n\"balancing test\" and found that the public interest was paramount.\nBy comparison, in Bartlett V. Zoning Commission, (2 E.R.C. 1684 (1971)), the\nplaintiff was a private landowner challenging the constitutionality of Con-\nnecticut's coastal zoning regulations on the grounds that they were so restric-\ntive that they rendered his lands commercially valueless. He had acquired\n-21-\nthe land with an intention of filling, but new zoning ordinances forbidding\nall filling activities were passed soon after his purchase. He then filed\nsuit in the Connecticut Court of Common Pleas for relief from the town Zoning\nCommission's amendment of the regulations, claiming that these measures\nwere a confiscation of his land without just compensation. Both the trial\ncourt and the Connecticut Supreme Court held that the zoning regulations\namounted to a taking of plaintiff's property in violation of his constitu-\ntional rights. The higher court acknowledged that perservation of the en-\nvironment with its ecological, healthful, aesthetic and economic benefits\nwas a laudable objective for the ordinances, but noted that the objective it-\nself was not in issue.\nThe important questions, as the state Supreme Court saw it, was whether this\nobjective could be accomplished in such a manner. Since these regulations\nleft the landowner with no reasonable commercial use for his property, the\ncourt concluded that the land was rendered practically worthless. The court\nalso noted that although the state legislature had recognized the importance\nof environmental preservation, the latter had made no provision for reasonable\ncompensation in cases where takings were necessary. The court therefore con-\ncluded that the extreme restrictions of the zoning regulations were an un-\nreasonable and arbitrary exercise of police power, and thus were confiscatory\nand unconstitutional.\nRestrictions imposed with the intent to prevent any increase in the cost of\nacquisition of lands intended to be acquired or purchased at a later date were\nheld to be unreasonable in Peacock V. County of Sacramento, 271 C.A. 2d 845.\nIn an inverse condemnation action against the county, the court found that a\n\"taking\" occurred, where the county, in contemplation of acquiring a private\nairport for public use, had adopted a height restriction ordinance, rezoned\n-22-\nthe property to a more restrictive zone designed for use in airport approach\nareas, and adopted a general plan for development of the airport. The ef-\nfect was to essentially freeze development of the plaintiff's property. The\nPeacock case suggests that certain plans may become, in fact, regulations\nwith consequent legal effects, including inverse condemnation.\nPRE-EMPTION\nState statutes are invalid if superceded by federal law or attempt to regu-\nlate subject matter over which the federal government has pre-empted the\nfield. It is clear that a state law in direct conflict with a valid federal\nstatute must yield under the supremacy clause of the U.S. Constitution.\nState statutes may also be pre-empted, although not in direct conflict with\nfederal law, if the federal government has fully occupied the field of regu-\nlation. Whether or not a federal law leaves no room for state regulation\nmust be determined in light of the whole federal statute and evidence of\nCongressional intention to occupy the field. State laws may be invalidated\nwhere the scheme of federal legislation is SO pervasive as to give rise to\na reasonable inference that Congress left no room for the states to supple-\nment it, or where the state law presents a serious danger of conflict with\nthe administration of a federal program pursuant to federal legislation cov-\nering the same subject matter (Pennsylvania V. Nelson, 350 U.S. 497, 100 L.\nEd. 640).\nWhether or not a state law is in conflict with federal law is not easily\ndetermined. Although not invalid on its face, a state regulation may be held\nto be invalid as applied to a particular situation in which federal law con-\ntrols.\nSUMMARY\nThe California coastal zone initiative represents an exercise of the state's\n-23-\npolice power through the initiative power reserved to the people by the Calif-\nornia Constitution. It provides for the creation by statute of a state com-\nmission and six regional commissions to prepare a plan for regulation of\nthe use of the coastal zone. It provides further for a permit procedure\nand approval of development within the defined zone during the period of pre-\nparation of the plan. As an exercise of the state's police power, it is sub-\nject to Constitutional limitations in its application. Whether or not one\nor more of its provisions violates Constitutional due process or property\nrights can be answered only in terms of the application of such provision to\na given factual situation. In some situations, it is clear that the pro-\nvisions of the statute cannot apply to matters which will be subject to fed-\neral regulation.\nA principal characteristic of the proposal is that it provides for a separ-\nate plan for a limited area in which development must be consistent with its\nprovisions. It creates a conflict with other provisions of law which re-\nquire the enactment of general plans with specified elements and require zon-\ning and subdivision regulations to be consistent therewith. Questions of\ninverse condemnation will undoubtedly arise with respect to application of\nthe permit provisions to particular lands and uses.\nAn unfortunate part of the initiative process is that it leaves no room for\namending and clarifying provisions of the measure after it is filed and prior\nto enactment. Portions of the measure are ambiguous and will probably lead\nto litigation. An example is the language of proposed section 27404 relating\nto prior vested rights. A reading of the language of that section can be\nconstrued to provide that restrictions of the measure are applicable to per-\nsons who have in fact, under the law, acquired vested rights under a valid\nbuilding permit issued subsequent to April 1, 1972.\n-24-\nSUMMARY OF THE CALIFORNIA COASTLINE INITIATIVE\nResponsibility for land use regulation and control in California is shared\nbetween various levels of government, although local government continues to\nassume primary responsibility for the regulation of all land other than that\nowned by State and Federal agencies.\nThe California Coastline Initiative would change the existing method of regu-\nlating land use through the creation of a statewide California Coastal Zone\nConservation Commission and six regional commissions. The statewide and reg-\nional commissions would be responsible for developing and submitting to the\nLegislature for consideration by December 1, 1975, a California Coastal Zone\nConservation Plan. In addition, they would inherit strong new regulatory con-\ntrol over essentially all development within a coastal permit area during the\ntime that the California Coastal Zone Conservation Plan is being prepared.\nBecause of the significance of the proposals contained in the initiative, a\ndetailed summary of its major provisions has been prepared.\nSUMMARY OF PROVISIONS\nIf adopted, the California Coastline Initiative would add a new level of plan-\nning and land use regulation to the existing governmental framework. That is,\ncities and counties would continue to plan and make recommendations for land\nuse within their respective boundaries. However, implementation of their plans\nand specific land use decisions would be conditioned on the additional approval\nof the regional and, in some cases, a statewide California Coastal Zone Conser-\nvation Commission.\nWHO WOULD SERVE ON THE COMMISSIONS?\nThe statewide California Coastal Zone Conservation Commission would consist of\n-25-\ntwelve (12) members. Six would represent, and would be selected by, the reg-\nional commissions. The remaining six members would represent the public, and\nthey would be appointed equally by the Governor, the Senate Rules Committee,\nand the Speaker of the Assembly.\nMembership of the six regional commissions would be, as follows:\n1. North Coast Regional Commission (Del Norte, Humboldt, and\nMendocino Counties)\nSix city and county officials (one city councilman and\none supervisor from each county)\nSix public representatives\n2. North Central Coast Regional Commission (Sonoma, Marin,\nand San Francisco Counties)\nSeven city and county officials (one city councilman and\none supervisor from Sonoma and Marin Counties; two sup-\nervisors from the City and County of San Francisco; one\ncity councilman or supervisor from the Association of Bay\nArea Governments)\nSeven public representatives\n3. Central Coast Regional Commission (San Mateo, Santa Cruz,\nand Monterey Counties)\nEight city and county officials (one city councilman and one\nsupervisor from each county; one city councilman or super-\nvisor from the Association of Bay Area Governments; one\n-26-\ncity councilman or supervisor from the Association of\nMonterey Bay Area Governments)\nEight public representatives\n4. South Central Coast Regional Commission (San Luis Obispo,\nSanta Barbara, and Ventura Counties)\nSix city and county officials (one city councilman and one\nsupervisor from each county)\nSix public representatives\n5. South Coast Regional Commission (Los Angeles and Orange\nCounties)\nSix city and county officials (one supervisor from each\ncounty; one city councilman from the City of Los Angeles;\none city councilman from Los Angeles County from a city\nother than Los Angeles; one city councilman from Orange\nCounty; one city councilman or supervisor from the South-\nern California Association of Governments)\nSix public representatives\n6. San Diego Coast Regional Commission (San Diego County)\nSix city and county officials (two supervisors from San Diego\nCounty; two city councilmen from San Diego County, at least\none of whom shall be from a city which lies within the per-\nmit area; one city councilman from the City of San Diego;\none member of the San Diego Comprehensive Planning Organiza-\ntion)\n-27-\nSix public representatives\nSupervisors on the regional commission would be appointed by their respective\nBoard of Supervisors, representatives of regional planning agencies would be\nappointed by their respective agency and, unless indicated otherwise, city\ncouncilmen would be appointed by the city selection committee in their respec-\ntive county.\nAs with the statewide commission, public representatives on the regional com-\nmissions would be selected by the Governor, the Senate Rules Committee, and\nthe Speaker of the Assembly. With respect to public members, the initiative\nspecifically provides, as follows:\n\"Each public member of the commission or of a regional commission\nshall be a person who, as a result of his training, experience,\nand attainments, is exceptionally well qualified to analyze and\ninterpret environmental trends and information, to appraise re-\nsource uses in light of the policies set forth in this division,\nto be responsive to the scientific, social, esthetic, recreational,\nand cultural needs of the state. Expertise in conservation, rec-\nreation, ecological and physical sciences, planning, and education\nshall be represented on the commission and regional commissions.\"\nThe initiative provides that all members of the state and regional commissions\nmust be appointed by December 31, 1972. The first meeting of the regional com-\nmissions would be held no later than February 1, 1973, and the first meeting\nof the state commission would be held no later than February 15, 1973. Member:\nof the regional and state commissions would receive no compensation for their\nservices other than actual and necessary expenses. In addition, members who\nare not employees of other public agencies would receive $50 for each full day\n-28-\nof actual meetings of either the state or regional commission.\nWHAT WOULD THE COMMISSIONS DO?\nThe principal responsibility of the state commission would be to prepare, by\nDecember 1, 1975, a California Coastal Zone Conservation Plan for considera-\ntion by the Legislature. The state commission would also hear appeals regard-\ning decisions of regional commissions to approve or deny a permit for develop-\nment within the permit area.\nRegional commissions, in cooperation with local agencies, would be responsible\nfor preparing and submitting recommendations for the California Coastal Zone\nConservation Plan to the state commission no later than April 1, 1975. The\nrecommendations from regional commissions must include \"areas that should be\nreserved for specific uses or within which specific uses should be prohibited.\"\nIn addition, regional commissions, on and after February 1, 1973, would be res-\nponsible for issuing permits authorizing development within a prescribed \"per-\nmit area.\"\nBoth statewide and regional commissions would be required to meet at least once\na month. They would each elect a chairman and appoint an executive director,\nand would be authorized to employ additional staff and contract for necessary\nprofessional services. In addition, any federally recognized regional planning\nagency would be required to provide staff assistance to the regional commission\nwithin its region \"insofar as its resources permit,\" and the staff and budget\nof the California Comprehensive Ocean Area Plan (presently under the jurisdic-\ntion of the State Department of Navigation and Ocean Development) would be as-\nsigned to the state commission. The initiative provides that a total of $5\nmillion shall be allocated for operation of the state and regional commissions\nduring fiscal years 1973 to 1976.\n-29-\nWHAT IS THE NATURE OF THE CALIFORNIA COASTAL ZONE CONSERVATION PLAN?\nAs indicated, the principal responsibility of the state commission is to pre-\npare a California Coastal Zone Conservation Plan for consideration by the Leg-\nislature. The initiative defines the coastal zone, as follows:\n\"The Coastal zone means that land and water area of the State of\nCalifornia from the border of the State of Oregon to the border\nof the Republic of Mexico, extending seaward to the outer limit\nof the state jurisdiction of the state, and extending inland to\nthe highest elevation of the nearest coastal mountain range, ex-\ncept that in Los Angeles, Orange, and San Diego Counties, the in-\nland boundary of the coastal zone shall be the highest elevation\nof the nearest coastal mountain range or five miles from the mean\nhigh tide line, whichever is the shorter distance.\"\nBecause the landward boundaries of the coastal zone are related to the mean\nhigh tide line of the \"sea,\" this term is also defined in the initiative:\n\"Sea means the Pacific Ocean and all the harbors, bays, chan-\nnels, estuaries, salt marshes, sloughs, and other areas sub-\nject to tidal action through a connection with the Pacific\nOcean, excluding nonestuarine rivers and creeks.\"\nThe initiative provides that the coastal zone plan shall be \"based upon de-\ntailed studies of all the factors that significantly affect the coastal zone,\"\nand that it shall be consistent with the following objectives:\n(a) The maintenance, restoration, and enhancement of the over-\nall quality of the coastal zone environment, including, but\nnot limited to, its amenities and aesthetic values.\n-30-\n(b) The continued existence of optimum populations of all\nspecies of living organisms.\n(c) The orderly, balanced utilization and preservation, con-\nsistent with sound conservation principles, of all liv-\ning and nonliving coastal zone resources.\n(d) Avoidance of irreversible and irretrievable commitments\nof coastal zone resources.\nIn addition to the objectives listed above, the initiative also provides that\nthe coastal zone plan shall contain at least the following elements:\n(a) A precise, comprehensive definition of the public interest\nin the coastal zone.\n(b) Ecological planning principles and assumptions to be used\nin determining the suitability and extent of allowable de-\nvelopment.\n(c) A component which includes the following elements:\n(1) A land-use element.\n(2) A transportation element.\n(3) A conservation element for the preservation and manage-\nment of the scenic and other natural resources of the\ncoastal zone.\n(4) A public access element for maximum visual and physical\nuse and enjoyment of the coastal zone by the public.\n(5) A recreation element.\n(6) A public services and facilities element for the general\nlocation, scale, and provision in the least environment-\nally destructive manner of public services and facilities\nin the coastal zone. This element shall include a power\n-31-\nplant siting study.\n(7) An ocean mineral and living resources element.\n(8) A population element for the establishment of maximum\ndesirable population densities.\n(d) Reservations of land or water in the coastal zone for certain\nuses, or the prohibition of certain uses in specific areas.\n(e) Recommendations for the governmental policies and powers re-\nquired to implement the coastal zone plan including the or-\nganization and authority of the governmental agency or agencies\nwhich should assume permanent responsibility for its implementa-\ntion.\nHOW WOULD THE INTERIM PERMIT PROCEDURE WORK?\nGENERAL PROVISIONS\nDuring the time that the California Coastal Zone Conservation Plan was being\nprepared, regional commissions would be granted broad regulatory authority\nover development in a prescribed \"coastal permit area,\" which is defined, as\nfollows:\n\"Permit area means that portion of the coastal zone lying between\nthe seaward limit of the jurisdiction of the state and 1,000 yards\nlandward from the mean high tide line of the sea subject to the\nfollowing provisions:\n(a) The area of jurisdiction of the San Francisco Bay Conservation\nand Development Commission is excluded.\n(b) If any portion of any body of water which is not subject to\ntidal action lies within the permit area, the body of water\n-32-\ntogether with a strip of land 1,000-feet wide surrounding it\nshall be included.\n(c) Any urban land area which is (1) a residential area zoned, stab-\nilized and developed to a density of four or more dwelling units\nper acre on or before January 1, 1972; or (2) a commercial or in-\ndustrial area zoned, developed, and stabilized for such use on or\nbefore January 1, 1972, may, after public hearing, be excluded\nby the regional commission at the request of a city or county with-\nin which such area is located. An urban land area is \"stabilized\"\nif 80 percent of the lots are built upon to the maximum density\nor intensity of use permitted by the applicable zoning regulations\nexisting on January 1, 1972.\nTidal and submerged lands, beaches, and lots immediately adjacent\nto the inland extent of any beach or of the mean high tide line\nwhere there is no beach shall not be excluded.\nOrders granting such exclusion shall be subject to conditions\nwhich shall assure that no significant change in density, height,\nor nature of uses occurs.\nAn order granting exclusion may be revoked at any time by the reg-\nional commission, after public hearing.\nAll persons (any individual, organization, partnership, and corporation, in-\ncluding any utility and any agency of federal, state, and local government)\nwould be subject to these additional permit requirements with respect to es-\nsentially any proposed \"development\" within the permit area. The initiative\ndefines development in the following broad, all-encompassing terms:\n\"Development means, on land, in or under water, the placement\n-33-\nor erection of any solid material or structure; discharge or dis-\nposal of any dredged material or of any gaseous, liquid, solid,\nor thermal waste, grading, removing, dredging, mining, or extrac-\ntion of any materials; change in the density or intensity of use\nof land, including, but not limited to, sub-division of land pur-\nsuant to the Subdivision Map Act and any other division of land,\nincluding lot splits; change in the intensity of use of water,\necology related thereto, or of access thereto, construction, re-\nconstruction, demolition, or alteration of the size of any struc-\nture, including any facility of any private, public, or municipal\nutility, and the removal or logging of major vegetation. As used\nin this section, \"structure\" includes, but is not limited to, any\nbuilding, road, pipe, flume, conduit, siphon, aqueduct, telephone\nline, and electrical power transmission and distribution line.\"\nMore specifically, the initiative provides that \"on or after February 1, 1972,\nany person wishing to perform any development within the permit area shall ob-\ntain a permit authorizing such development from the regional commission and,\nif required by law, from any city, county, state, regional or local agency.\"\nNo permit shall be issued unless the regional commission has first found both\nof the following:\n(a) That the development will not have any substantial adverse\nenvironmental or ecological effect.\n(b) That the development is consistent with the objectives of\nthe initiative.\nIn addition, the initiative provides that all permits shall be conditioned in\norder to ensure that:\n-34-\n(a) Access to publicly owned or used beaches, recreation areas,\nand natural reserves is increased to the maximum extent pos-\nsible by appropriate dedication.\n(b) Adequate and properly located public recreation areas and\nwildlife preserves are reserved.\n(c) Provisions are made for solid and liquid waste treatment, dis-\nposition, and management which will minimize adverse effects\nupon coastal zone resources.\n(d) Alterations to existing land forms and vegetation, and construc-\ntion of structures shall cause minimum adverse effect to scenic\nresources and minimum danger of floods, landslides, erosion, sil-\ntation, or failure in the event of earthquake.\nThe issuance of a permit would require the affirmative vote of a majority of\nthe total authorized membership of the regional commission, with the following\nexceptions:\n(a) No permit may be issued for any of the following purposes\nwithout the affirmative vote of two-thirds of the total\nauthorized membership of the regional commission, or the\nstate commission on appeal:\n(1) Dredging, filling, or otherwise altering any bay,\nestuary, salt marsh, river mouth, slough, or lagoon.\n(2) Any development which would reduce the size of any\nbeach or other area usable for public recreation.\n(3) Any development which would reduce or impose restric-\ntions upon public access to tidal and submerged lands,\nbeaches and the mean high tideline where there is no\nbeach.\n-35-\n(4) Any development which would substantially interfere\nwith or detract from the line of sight toward the sea\nfrom the state highway nearest the coast.\n(5) Any development which would adversely affect water\nquality, existing areas of open water free of visible\nstructures, existing and potential commercial and sport\nfisheries, or agricultural uses of land which are exist-\ning on the effective date of this division.\n(b) No permit is required for the following types of development:\n(1) Repairs and improvements not in excess of seven thousand\nfive hundred dollars ($7,500) to existing single-family\nresidences; provided, that the commission shall specify\nby regulation those classes of development which involve\na risk of adverse environmental effect and may require\nthat a permit be obtained.\n(2) Maintenance dredging of existing navigation channels or\nmoving dredged material from such channels to a disposal\narea outside the permit area, pursuant to a permit from\nthe United States Army Corps of Engineers.\n(c) The regional commission may provide for the issuance of permits\nby the executive director in cases of emergency or for repairs\nor improvements to existing structures not in excess of $25,000\nand other developments not in excess of $10,000. (Non-emergency\npermits would not be effective until after reasonable public\nnotice and adequate time for review of such issuance had been pro-\nvided. If any two members of the regional commission request at\nthe first meeting following the issuance of such permit, the\n-36-\nissuance shall not be effective and the application shall be\nset for normal public hearing).\n(d) If, prior to the effective date of the initiative, any city\nor county has issued a building permit, no person who has a\nvested right in that permit shall be required to obtain an\nadditional permit from the regional commission, providing\nthat no substantial changes are made in any such development.\nAny person shall be deemed to have a vested right if, prior\nto April 1, 1972, he has in good faith and in reliance upon\nthe building permit diligently commenced construction and per-\nformed substantial work on the development and incurred sub-\nstantial liabilities for necessary work and materials.\nSPECIFIC REVIEW AND APPEAL PROCEDURES\nAfter an application for a development permit has been made, the initiative\nprovides that the regional commission shall give \"written public notice of the\nnature of the proposed development and of the time and place of the public\nhearing.\" The hearing must be set no less than 21 nor more than 90 days after\nthe application has been filed, and the regional commission must act upon the\napplication within 60 days after the conclusion of the hearing. Such action\nshall become final after the tenth working day unless an appeal is filed with-\nin that time.\nOnce a decision on the application has been made by the regional commission, it\nmay be appealed by any party to the state commission. The state commission\n\"may affirm, reverse, or modify the decision of the regional commission.\" The\nstate commission may also decline to hear appeals that it determines raise no\nsubstantial issues. If the state commission fails to act within 60 days after\n-37-\na notice of appeal has been filed, the regional commission's decision becomes\nfinal. Appeals heard by the state commission shall be scheduled for a de novo\npublic hearing and shall be decided in the same manner and by the same vote as\nregional commissions.\nIn addition to the above appeals procedure, any party may petition for judicial\nreview of decisions made by the state or regional commission. Any party may\nalso seek injunctive relief, or maintain an action for the recovery of civil\npenalties. It is not necessary to post a bond prior to seeking injunctive re-\nlief, and any person who is successful in obtaining a restraining order or who\nprevails in an action to recover penalties is entitled to a personal award for\ncosts, including reasonable attorneys' fees.\nOTHER PROVISIONS\nAMENDMENTS\nA 2/3 vote is necessary for the Legislature to amend any of the initiative pro-\nvisions.\nTERMINATION\nAll initiative provisions terminate 91 days after the final adjournment of the\n1976 Regular Session of the Legislature.\nCONFLICT OF INTEREST\nThe initiative includes specific conflict of interest provisions designed to\nrestrict the participation of commission members and employees, former members\nand employees of one year or less, and certain business associates from parti-\ncipating in any official commission deliberations or other official matters on\ntheir personal behalf. Current members and employees are further prohibited\nfrom participating in an official capacity in any matter in which they, their\n-38-\nfamily, or certain business associates have any financial interest.\nPENALTIES\nA civil fine of up to $10,000 could be imposed for violation of any of the in-\nitiative provisions. An additional fine of up to $500 per day could be imposed\nfor each day an unlawful development \"persists.\"\n-39-\nCURRENT PROGRAMS [FEDERAL]\nCURRENT POLICIES AND PROGRAMS FOR LAND USE CONTROL\nTHE FEDERAL ROLE\nCURRENT POLICIES AND PROGRAMS FOR LAND USE CONTROL\nTHE FEDERAL ROLE\nMost federal agencies with domestic functions exercise some type of influence\non land use controls and management. This section focuses on four types of\nfederal programs that have a direct or indirect impact on land use. These four\ncategories of federal programs are: programs which manage federally owned land;\nprograms which regulate some type of land use; grants for certain types of de-\nvelopment; and grants for land use planning. This section also analyzes pro-\nposed federal legislation which authorizes financial assistance for state land\nuse agencies and state coastal management agencies.\nPerhaps the most important role the federal government plays in land use con-\ntrol is the ownership and management of its property and installations. The\nimpact of federal lands extends beyond their boundaries. The location and man-\nagement of federally-owned properties influences the land uses of the surround-\ning areas and often has regional impact.\nSeveral federal agencies have permit regulations which affect coastal areas.\nThese agencies include the Corps of Engineers, the Coast Guard and the Atomic\nEnergy Commission.\nThe federal government finances a large portion of the development of public\nfacilities, including water and sewer facilities and transportation facilities.\nThese two types of facilities determine land use to a great extent and these\nprograms have delineated the land use patterns in many metropolitan areas.\nThe most important planning program is the Section 701 program administered by\nthe U.S. Department of Housing and Urban Development. Several other programs\nprovide a small level of support for planning efforts. These planning programs\nhave had a limited impact on land use control. The planning functions supported\n-40-\nby the federal programs have been administratively separated from the imple-\nmentation and control mechanisms at the state and local level.\nThe proposed federal legislation requires states to establish control over\nareas having environmental importance and the bills set up sanctions if the\nstates fail to comply. These bills support and encourage greater state in-\nvolvement in land use planning but do not preempt local regulations.\nThese areas do not cover the complete federal role in land use. The federal\nincome tax policy has a critical influence on land development. Federal in-\ncome tax provisions on depreciation and property tax deductions have encour-\naged home construction. Depreciation regulations have also created strong in-\nterest in subsidized housing. However, federal taxation regulations sometimes\nconflict with each other and these regulations can conflict with the goals of\nfederal programs. The overall impact of these regulations is not clear.\nThere are also many other federal programs that have an indirect impact on\nland use. One study lists over 100 federal programs that relate to land use\nin some way. Many of them have only a limited impact on land use and are\nclearly beyond the scope of this report. Each of these program agencies, how-\never, are required to specifically report on the environmental effects of\ntheir activities according to the terms of the National Environmental Protec-\ntion Act of 1970.\nMANAGEMENT PROGRAMS\nThe federal government owns approximately one-third of the land in the U.S.\nOut of 2.3 billion acres, including Alaska and Hawaii, the U.S. government ad-\nministers about 762 million acres.\nThe federal lands in California compose 44.8 per cent of the total acreage\n-41-\n(44,903,872 acres out of a total of 100,206,720 acres). The bulk of this land\nis owned by the Forest Service and the Bureau of Land Management.\nThe following table lists the major land holding agencies and the acres they\ncontrol in the U.S. and in California.\nAgency\nAcres\nU.S.\nCalifornia\nInterior Department\n540,326,592\n20,921,372\nBureau of Land Management\n451,043,353\n15,584,932\nNational Park Service\n30,124,006\n4,165,888\nFish and Wildlife Service\n27,970,161\n65,966\nBureau of Reclamation\n8,751,140\n1,104,534\nBureau of Indian Affairs\n5,033,849\n200\nAgriculture Department\n186,888,833\n20,051,304\nForest Service\n186,472,236\n20,050,572\nDefense Department\n30,599,503\n3,906,238\nArmy\n11,348,385\n966,125\nAir Force\n8,377,360\n472,741\nCorps of Civil Engineers\n7,259,973\n86,528\nNavy\n3,613,785\n2,380,844\nThe four most important federal land management agencies are the Bureau of\nLand Management, the Fish and Wildlife Service, the National Park Service and\nthe Forest Service.\nBUREAU OF LAND MANAGEMENT\n(BLM) located in the Department of Interior, classifies, manages and disposes\nof the public lands and their related resources according to the principles of\nmultiple use management. It also administers the mineral resources connected\n-42-\nwith acquired lands and the submerged lands of the Outer Continental Shelf.\nBLM typically controls lands of less value than those held by the other three\nkey agencies. It is responsible for the management of 60 per cent of the fed-\neral lands, and the BLM lands cover 20 per cent of the total land base in the\nU.S. Lands under its jurisdiction are located primarily in the far West and\nAlaska.\nPublic land resources managed by the Bureau include timber, minerals, wildlife\nhabitat, livestock forage, public recreation values and open space. BLM is\nresponsible for the survey of federal lands and maintains public records. It\nis also responsible for mineral leasing on land held by other federal agencies.\nFISH AND WILDLIFE SERVICE\nLocated in the Department of Interior, oversees the production and distribu-\ntion of hatchery fish, the operation of a nationwide system of wildlife refug-\nes, the regulation of migratory bird hunting, the management of fish and wild-\nlife populations by scientific research and methods, and the improvement and\nprotection of a quality environment for fish and wildlife resources to exist.\nMost of the lands managed by the Fish and Wildlife Service are wildlife refug-\nes. The National Wildlife Refuge System includes 330 refuges and game ranges\nmanaged for migratory birds, protection of endangered species, public enjoy-\nment of natural resources, and economic benefits from sales of land products\nand concessions.\nThe Fish and Wildlife Service also studies environmental impact statements and\nwater use projects proposed by federal or private agencies for the probable\neffects of such projects on fish and wildlife resources and recommends measures\nfor their conservation and development. It places emphasis on conservation of\n-43-\nestuaries and development of comprehensive river basin plans which consider\nfuture needs based on fish and wildlife.\nNATIONAL PARK SERVICE\nLocated in the Department of Interior, manages an extensive system of nation-\nal parks, recreation areas and monuments. Its purpose is to conserve the\nscenery and the natural and historic objects and the wildlife of the park\nareas. Park areas are divided into three categories: natural, historical\nand recreational. The Park Service works to develop the full potential of\neach area for the public's enjoyment and education and to protect the natural\nand cultural resources in those areas.\nFOREST SERVICE\nLocated in the Department of Agriculture, manages 154 national forests and 19\nnational grasslands in 41 states. The Forest Service manages these lands on\nthe principles of multiple use and sustained yield. It balances the large de-\nmand for wood and paper products with other resources and benefits such as\nrecreation, wildlife habitats, livestock forage and water supplies.\nThe Forest Service protects these lands from fires, erosion, floods and water\nand air pollution. Timber harvesting methods are used which will protect the\nland and streams, assure rapid renewal of forests and have minimum impact on\nscenic and recreation values. Some 14.5 million acres are set aside for wild-\nerness and primitive areas where timber will not be harvested.\nMajor technical support has been provided by the Forest Service to the Tahoe\nregional planning agencies in preparing the multi-purpose land use plan and\nstrategy for the entire Basin.\nTRANSFER OF FEDERAL LANDS TO STATE AND LOCAL GOVERNMENTS\n-44-\nThe federal government is currently surveying its property and turning over\nselected parcels to state and local governments. These excess parcels are\nprimarily lands managed by the Defense Department.\nThe transfers are usually designated for parks and open space. So far, 144\ntracts in 39 states have been converted to parks. This program, known as the\nLegacy of Parks program, began two years ago. The first transfer was at Camp\nPendleton in California. The Defense Department leased six miles of the 17\nmile coastline of Camp Pendleton to the State of California.\nThe Property Review Board, which is the operating agency for this program, in-\ntends eventually to survey all federal lands. At the present time it is foc-\nusing its efforts on military bases making up 58 million acres.\nThe Board has turned up major problems in the management of federal property.\nDonald Rumsfield, director of the Board, stated: \"It was apparent that many\nthousands of acres of federal real estate throughout the country were being\nwastefully managed, while other vast areas were unnecessarily fenced off,\ntheir enjoyment denied to the American people to whom they belong.\"\nINTER- AND INTRA-GOVERNMENTAL COOPERATION\nThe extent of federal ownership of land poses a major difficulty for land use\nagencies in California and other Western states. It is difficult for the land\nuse agencies in these states to plan for non-federal lands because they are\nunable to obtain sufficient information on federal land management activities.\nThe state and local governments do not have any input into federal decisions\nand they are not consulted before the decisions are made. The problem for\nstate agencies is compounded by the fact that federal lands are often scattered\nin checkerboard fashion.\n-45-\nThe lack of intergovernmental cooperation in land use decisions also poses\nproblems for the federal land management agencies. Unplanned or badly planned\nland use patterns on the periphery of federal lands threaten the quality of\nnational parks, wildlife refuges and wilderness areas. These problems could\nbe avoided or alleviated with better intergovernmental cooperation and coordi-\nnation.\nFederal land management agencies often fail to coordinate decisions among\nthemselves, but lack of intra-governmental cooperation is usually unintention-\nal. The decision makers are often unaware of the land use impacts of their\ndecisions.\nA recent report from the Senate Committee on Interior and Insular Affairs high-\nlighted this problem.\nWe have conducted too many of our programs and activities in inex-\ncusable ignorance of their often contradictory and deleterious ef-\nfects. Illustrative of this was the Everglades Jetport controversy.\nIn the Senate Interior Committee hearings in June 1969, three pres-\ntigious federal agencies were (found to be) undertaking activit-\nies--flood control, airport development, and national parks and rec-\nreation programs--in compliance with their mission-oriented guide-\nlines but with little appreciation of the contradictory, self-de-\nfeating, and environmentally destructive land use impacts of those\nactivities.*\nAnother major problem in federal land use management is the lack of an adequate\ndata base for land use planning or for decisions having an important land use\nimpact. Another Senate committee report focuses on this problem.\nFour years ago, Congress wrestled with a final decision on the issue\nof whether dams would be constructed in the vicinity of the Grand\nCanyon. Last year, this Committee held a series of hearings on the\nFour Corners power question, considered by many to present an equal\nor greater threat to the environment. The issues involved were much\nthe same-growing West Coast energy needs and environmental protec-\ntion--but in neither case, when the first decisions were made, were\nthe issues properly addressed with data sufficient to identify the\n*National Land Use Policy Background Papers, Committee on Interior and Insular\nAffairs, U.S. Senate, April 1972, p. 7.\n-46-\nvarious options and their potential environmental, economic and soc-\nial consequences.*\nThe use, management and disposition of the federal lands obviously is extremely\nimportant in California. Several recent events and current proposals illus-\ntrate this fact. The National Park Service established the Point Reyes Nation-\nal Seashore in 1962. This park covers over 64,000 acres of coastal area. The\nDefense Department recently leased six miles of beach area in Camp Pendleton\nto the State of California. The Defense Department is reviewing all its hold-\nings in California, and the state will have an opportunity to purchase any\nlands that are declared excess property. Congress is considering a Golden Gate\nNational Seashore which would encompass 8,000 to 16,000 acres at the entrance\nto the San Francisco Bay.\nENVIRONMENTAL PROTECTION ACT\nThe National Environmental Protection Act (NEPA) was designed to make environ-\nmental protection a part of the mandate of every federal agency. NEPA requires\neach agency to thoroughly evaluate the environmental impact of its decisions.\nIn particular, if an agency is involved in federal activity that significantly\naffects the quality of the environment, it must file a detailed statement which\ndiscusses the following topics:\n1. the environmental impact of the proposed action;\n2. any adverse environmental effects which cannot be\navoided should the proposal be implemented;\n3. alternatives to the proposed action;\n4. the relationship between local short-term uses of\nman's environment and the maintenance and enhance-\nment of long-term productivity;\nLand Use Policy and Planning Assistance Act of 1972, Report of the Committee\non Interior and Insular Affairs, June 19, 1972, p. 40.\n-47-\n5. any irreversible and irretrievable commitments of\nresources which would be involved in the proposed\naction should it be implemented.\nREGULATORY PROGRAMS\nWhile a number of federal agencies have a direct or indirect regulatory role\nin land use decisions, three of them are of particular importance to coastal\nareas. These agencies require permits for certain uses in and around waterway\nareas and regulate specific land or water uses.\nCORPS OF ENGINEERS\nThe Corps has responsibility for planning, programming and budgeting for the\nimprovement of rivers, harbors and waterways for flood control and related pur-\nposes. It constructs, operates and maintains developments such as dams and\ncauseways in navigable waterways. It also administers the laws for the pro-\ntection and preservation of these waters.\nThe Corps conducts studies of the most suitable methods of beach protection and\nrestoration. It provides assistance to states, counties and municipalities for\ndetermining appropriate locations for recreation facilities. Congress and the\ncourts are interpreting the statutory authority of the Corps to include consid-\neration of public access, recreation, and protection of ecological and environ-\nmental values in its projects and in waterways under its surveillance.\nThe Corps has provided considerable support to management and planning efforts\ndirected at the California Coastline as evidenced by their National Shoreline\nStudies published in 1971. These reports focused on a \"California Regional In-\nventory\", \"Shore Management Guidelines\" and \"Shore Protection Guidelines\".\nThe Corps' role is particularly important in coastal areas because it regulates\n-48-\nall types of development which affect the navigable capacity of waterways.\nNo one can discharge refuse into navigable waters without a permit from the\nCorps. Finally, anyone building a pier or bulkhead, dredging or drilling\nmust obtain a permit from the Corps. The Corps can fine violators and obtain\ninjunctions against them.\nCOAST GUARD\nThe Coast Guard is the federal maritime law enforcement agency. Its activit-\nies include search and rescue missions, boating safety, merchant marine safety\nand navigation aids.\nPerhaps the most important function of the Coast Guard that affects land use\nis the regulation of bridges. Any governmental or private agency building a\nbridge over navigable waters must receive approval from the Coast Guard. The\nCoast Guard oversees the location, clearance and lighting of bridges. It also\ncan alter or remove bridges that obstruct navigable waterways.\nATOMIC ENERGY COMMISSION\nThe Atomic Energy Commission was established to provide and administer programs\nfor research and development in atomic energy uses, international cooperation,\nproduction of atomic energy and special nuclear materials and the dissemina-\ntion of scientific and technical information. It has responsibility to protect\nthe safety of the public and to regulate the control and use of nuclear mater-\nials.\nThe AEC regulatory functions include licensing and regulation of the civilian\nuse of nuclear materials. It issues permits for the construction of nuclear\npower plants and any other nuclear facilities. In carrying out these regula-\ntory functions, it negotiates agreements with states for their assumption of\n-49-\ncertain licensing and regulatory authority for atomic energy activities. En-\nvironmental impact review is required by AEC prior to the issuance of approval\nof any proposed nuclear power plant site.\nDEVELOPMENT PROGRAMS\nThe federal government has set up a large number of grants, loans, and other\nforms of assistance to state and local governments for development projects.\nThe two types of development projects which have the greatest impact on land\nuse are transportation and water and sewer construction. The two major trans-\nportation programs are the Interstate Highway System and the ABC program which\nfinances primary and secondary roads. Four different agencies finance the\nplanning and construction of water and sewer facilities.\nTRANSPORTATION\nFederal aid to assist states in road construction began in 1916. The first\nfederal assistance to urban highway programs was in 1944. The inter-state\nhighway program, started in 1956, produced a three-to-fourfolo increase in\nfederal expenditure for transportation assistance. Congress enacted extensive\nrequirements and physical standards in 1962.\nADMINISTRATION\nThe U.S. Department of Transportation has numerous transportation programs in-\ncluding such items as beautification and mass transit. The two largest pro-\ngrams are the interstate highway program and the ABC program. The federal\ngovernment pays ninety per cent of the cost of the interstate system which\nwill total 43,000 miles when completed. The program pays fifty per cent of\nthe cost with the remaining share covered by the state governments.\n-50-\nCongress has established the formulas for apportionment of funds for these\ntwo programs. Monies for interstate highways are apportioned to each state\non the basis of the state's estimated share of the total financing required\nto complete the system. The ABC program distributes funds according to each\nstate's relative share of population, land area and road mileage.\nThe funds for highway programs are disbursed to state highway departments.\nEach state submits a plan, specifications and cost estimates. DOT approves\na state transportation system and then provides funds as the states complete\napproved individual projects within that system. Federal funds can be used\nto reimburse planning, design and construction.\nBUDGET\nThe primary source of financing for both programs is the Highway Trust Fund.\nA four cent tax on gas, oil, and rubber produces the money for the fund.\nCongress makes authorizations for expenditures on the basis of the amount in\nthe fund.\nTotal annual authorizations for the fund increased markedly in the late 50's\nfrom $575 million in 1955 to $3.4 billion in 1960. Authorizations totaled\n$5.4 billion in 1972. Interstate System authorizations represent about three-\nfourths of the 1972 figure or $4 billion.\nPROPOSED CHANGES\nSeveral important changes will probably take place in federal transportation\npolicy in the next few years. The 1972 National Highway Needs Report rec-\nommends that a Single Urban Fund be established to fund urban highway and\nmass transit projects. The purpose of this change is to provide increased\nresources to deal with the problems of transportation in our major metropolitan\n-51-\nareas and to provide an assured pattern of program growth by funding both\nhighway and mass transit projects from the highway trust fund. The Interstate\nhighway program would be continued as a separate program.* Apparently DOT\nwill place increasing emphasis on solving urban transportation as the inter-\nstate system nears completion.\nWATER AND SEWER\nFour federal programs make grants to states and localities for water and sew-\ner projects. The following agencies administer these programs: Environmental\nProtection Agency, Department of Housing and Urban Development, Farmers Home\nAdministration and Economic Development Administration.\nOFFICE OF WATER PROGRAMS\nThis agency is located in the Environmental Protection Agency and provides\nfunds for the construction of wastewater treatment works, including inter-\ncepting and outfall sewers. Collector (residential sewer systems) are not\neligible for grant assistance.\nThe program assisted approximately 9400 public facilities between FY 1957 and\nFY 1969. EPA took over the program in December 1970 when EPA was established.\nAlthough EPA has many grant programs to assist pollution control, the waste-\nwater treatment works construction grant program accounted for $2 billion of\nthe $2.4 billion appropriated to EPA in FY 1972.\nThe agency distributes funds to the state principally on a population formula,\nthereby favoring more populous states. The federal share currently may not\nexceed 55 per cent of the planning and construction costs. The matching pro-\nvisions are complex and the federal contribution is dependent on the state\nshare and the local share. For example, if the state share is 25 per cent\nand the project conforms to enforceable water quality standards, the federal\n*Part 1 of 1972 National Highway Needs Report, 1972, p. VII.\n-52-\nshare may go up to 50 per cent. Between FY 1968 and FY 1971 appropriations\nincreased from $203 million to $1 billion. The appropriation in this program\nessentially doubled in FY 1972 to $2 billion. Pending legislation in Congress\nwould raise the funding to a level of $5 billion in FY 1975.\nDEPARTMENT OF HOUSING AND URBAN DEVELOPMENT\nThis department administers two community facilities programs which provide\ngrants for 1) basic water and sewer facilities and 2) public facilities loans.\nThe basic water and sewer program provides direct grants of up to 50 per cent\nof the cost of construction. Eligible projects include those providing for\nthe storage, treatment, purification and distribution of water, as well as\nthose for the collection and transmission of storm and sewer water. The sew-\nage grants cannot be used for waste treatment facilities and are primarily\ndesigned to support construction of collector lines. The grants serve to com-\nplement the grants EPA awards for wastewater treatment works.\nIn order to receive federal assistance, a project must be consistent with an\nofficially coordinated or unified program for an areawide water or sewer fac-\nilities system as part of the planned development of the area. Local public\nbodies, state and interstate agencies, and boards or commissions established\nby state law to finance water and sewer improvement projects are eligible for\ngrants.\nCongressional appropriations for this program totaled $350 million in FY 1971\nand approximately $500 million in FY 1972. However, despite the large demand\nfor water and sewer funds at the state and local level, the Office of Manage-\nment and Budget has allowed expenditures of only $150 million per year for\nseveral years.\nPUBLIC FACILITY LOANS\n-53-\nHUD also grants public facility loans to help finance public facility construc-\ntion when credit to support such projects is not otherwise available on reason-\nable terms. Loans may be made to municipalities and other political subdivi-\nsions having populations under 50,000 but priority is given to communities\nwith less than 10,000 inhabitants needing funds to construct water, sewer and\ngas distribution systems.\nThe public facility loans which were authorized by the Housing Amendments of\n1955, must be of sound value or adequately secured SO as to provide reason-\nable assurance of repayment. Interest rates are set by statute at either 0.5\nper cent above the rate on all interest-bearing obligations comprising the fed-\neral debt or 3 per cent whichever is higher. Maturities on these loans are\nlimited to 40 years.\nLoan assistance is concentrated in areas with credit shortages, chiefly in\nSoutheastern and Southwestern states. In intra-regional terms, the assistance\ngoes chiefly to very small, poor, rural communities. There is virtually no\nflow of funds to metropolitan areas or growth centers. Net loan approvals\nwere $40 million in FY 1971.\nECONOMIC DEVELOPMENT ADMINISTRATION\nThe principal EDA assistance program affecting water and sewage line construc-\ntion is the grant/loan program for public works and development facilities.\nGrants and direct loan funds are used to assist communities whose economic\ngrowth is lagging behind the rest of the nation to construct or improve the\nbasic public services and industrial infrastructure required to attract\ngrowth-generating enterprise.\nEligible communities are in areas designated by EDA according to the rate\nof unemployment, population loss, low income, and areas experiencing a sudden\n-54-\nrise in unemployment 50 per cent above the national.\nDirect loans and two types of grants are available under the program. Basic\ngrants provide up to 50 per cent of the project cost, and supplementary grants\ncan raise the federal share to 100 per cent of the total cost. Grants account\nfor approximately 65 per cent of the program's funds.\nAlthough this program is authorized up to $500 million, Congress has appro-\npriated about $160 million for each of the past several years. Approximately\n60 per cent of the funds go for water and sewer facilities, about half expended\nfor plants and the other half for collection or distribution lines.\nFARMERS HOME ADMINISTRATION\nThis U.S. Department of Agriculture agency has more than 20 major loan and\ngrant programs. Its soil and water program provides loans and grants to non-\nprofit organizations to construct community water and sanitary sewer systems.\nPublic or quasi-public bodies and corporations not operated for profit which\nwill serve rural areas of up to 5500 population may receive financial and\ntechnical assistance in planning, developing and improving or extending water\nand waste disposal systems. Loans and grant funds may be used to cover costs\nrelated to water supply pipelines and sewer lines.\nA borrower's total indebtedness for assistance may not exceed $4 million at\nany one time. Grants may be made to help finance up to 50 per cent of the\ndevelopment cost of a water or waste disposal system when grants are needed\nto reduce to a reasonable level the charges the users will pay.\nThe funding level for rural water and waste disposal grants was $41 million\nin FY 1971. Direct loans totaled over $32 million the same year.\n-55-\nOTHER DEVELOPMENT PROGRAMS\nThe U.S. Department of Housing and Urban Development funds up to 50 per cent\nof the total cost of acquisition and development of open space land in urban\nareas. Development costs may include roadways, basic utilities, recreational\nfacilities, improvements of acquired structures and preservation of historic\nand architecturally significant structures.* Only urban areas are eligible\nto receive the grants.\nThe federal obligation in FY 1971 was $75 million and this level increased to\nan estimated $100 million in FY 1972. During FY 1972, HUD approved 551 open\nspace grants.\nOther federal programs having an impact on land use are home mortgage insur-\nance and urban renewal. HUD's mortgage insurance program enables homebuyers\nto obtain mortgages with relatively low down payments. In FY 1971 HUD extended\nmortgage insurance through its non-subsidized Section 203(b) program to approx-\nimately 220,000 homes valued at over $4.6 billion. This program has been a\nmajor factor in the development of suburban areas around the large central\ncities.\nThe urban renewal program provides grants for surveys and planning, land ac-\nquisition and clearing, rehabilitation of existing structures and installation\nof public improvements in areas designated for renewal. These grants cover\ntwo-thirds of the project costs. The federal obligations for this program in\nFY 1971 were $551 million. The program is proposed to be folded into revenue\nsharing in 1973.\nAirport grants, available for the Federal Aviation Administration, fund 50\nper cent of the cost for land acquisition, site preparation and runways,\n*Catalog of Federal Domestic Assistance, Office of Management and Budget,\n1972, p. 397.\n-56-\nlighting utilities and other basic facilities. Federal obligations totaled\n$170 million in FY 1971 and are estimated at $280 million for FY 1972. FAA\nalso provides planning grants for the development of airport master plans\nand system plans.\nThe Department of Transportation assists in financing the acquisition, con-\nstruction and improvement of facilities and equipment for urban mass trans-\nportation systems. Grants are made for not more than two-thirds of project\ncosts. Grant obligations were $284 million in FY 1971 and increased to an\nestimated $510 million in FY 1972.\nPLANNING PROGRAMS\nFour federal programs provide grants to state governments which are earmarked\nfor planning purposes. These programs are designed to increase the states'\nplanning capability and to enable the states to meet legislative require-\nments for receipt of development funds. The Section 701 program has played\na major role in the establishment of state and local planning agencies all\nover the country. However, the other three programs have had a rather limited\nimpact partly because of the low level of funding.\n701 PLANNING PROGRAM\nAUTHORITY\nThe National Housing Act of 1954 set up the Section 701 planning program.\nThe legislation stipulates that grants to state agencies are authorized for\nthe provision of planning assistance to municipalities of less than 50,000\npopulation and to counties without regard to population. However, if a county\nhas a population greater than 50,000 and is located within a metropolitan\narea, its planning must be coordinated with a program of comprehensive planning\n-57-\nbeing carried out for the metropolitan area. Regional planning agencies and\nplanning agencies in cities of over 50,000 can apply for grants directly to\nHUD.\nADMINISTRATION\nThe U.S. Department of Housing and Urban Development administers the Section\n701 program. The program is designed to promote sound local, areawide and\nstatewide development through comprehensive planning. It provides grants of\nup to two-thirds of the cost of a planning project in most cases. All appli-\ncants must have an overall program design and they have to make application\nto HUD annually.\nEligible activities under the program include the preparation of development\nplans, policies and strategies; implementation measures; and the coordination\nof related plans and activities being carried on at various levels of govern-\nment. A broad range of subject may be considered in the course of the compre-\nhensive planning process. They include land development patterns, housing,\ncommunity facilities, the development of human resources and the development\nand protection of natural resources.*\nSTATE AGENCIES\nThe activities carried out by state planning agencies vary from state to\nstate. Generally, these agencies conduct a statewide planning program and\nprovide technical assistance to small communities. Some state agencies focus\non statewide planning while a few limit their activities to providing tech-\nnical assistance.\nBUDGET\n*Catalog of HUD Programs, HUD-214-SP, July 1971.\n-58-\nThe funds authorized for the program have increased markedly since the pro-\ngram's inception. In 1955 Congress authorized $1 million, in 1964, $21 mil-\nlion and in 1970, $50 million. In 1971, HUD merged the Community Renewal\nProgram which provided planning grants to cities over 50,000 population with\nthe 701 program. As a result of this merger, the authorization for the 701\nprogram in 1972 fiscal year totaled $100 million.\nPROPOSED CHANGES\nSeveral changes are currently taking place in the administration of the pro-\ngram. HUD is now emphasizing that the 701 grants are for planning and manage-\nment assistance. HUD apparently is focusing on management because many\nagencies have developed plans rather than setting up a planning process.\nIn line with this emphasis, HUD is aiming to support the chief executive of\nstate and local governments in formulating and coordinating community develop-\nment strategies.\nThe proposed 1972 Housing Act increases the authorization for the program\nfrom $100 million to $200 million. It also replaces the federal two-thirds\nmatching grant with an 80 per cent-20 per cent matching ratio.\nOUTLOOK\nThe major contributions of the program have been the development of a state\nplanning capability in virtually every state and the support of areawide\nplanning agencies, COG's (Council of Governments). In the next four years,\nthe program should improve the management capability of state and local gov-\nernments.\nWATER RESOURCES PLANNING COUNCIL\nAUTHORITY\n-59-\nSeveral other federal programs provide monies to state agencies for plan-\nning purposes. The Water Resources Planning Council prepares a continuing\ninventory of water resources throughout the country. It is an independent\nagency set up in 1965 by the Water Resources Planning Act. The two main\nfunctions of the Council are to establish and assist river basin commissions*\nand to administer federal financial grants to states for water and related\nland resources planning.\nADMINISTRATION\nAll states are eligible to receive the planning grants. A designated state\nagency, usually the state agency dealing with natural resources, must submit\nan application that indicates the intended use of the funds. The planning\neffort should be aimed at the conservation, development and utilization of\nwater and other related land resources in a manner which protects the public\ninterest. The grants cannot be used for construction. Otherwise, the states\nhave extensive flexibility in using the funds.\nThe appropriated monies are distributed on the basis of several criteria.\nSixty per cent of the grant money is determined by state population, land\narea and income. The remaining. forty per cent is distributed on the basis\nof need.\nBUDGET\nThe original legislation authorized $5 million per year for ten years begin-\nning in 1967. Appropriations have been relatively low, however, reaching\nsome $3.7 million for FY 1971.\nBUREAU OF OUTDOOR RECREATION\nSeven commissions have been created thus far. Their jurisdictions cover\nmost of the northern half of the country.\n-60-\nThe Land and Water Conservation Act of 1962 established the Bureau of Out-\ndoor Recreation. This bureau, located in the U.S. Department of Interior,\nsupplies grants to states for the planning, acquisition and development of\noutdoor recreation areas. In order for a state to receive acquisition or\ndevelopment grants, it must develop a comprehensive statewide outdoor rec-\nreation plan and update and refine it on a continuing basis. The plans\nidentify the capital investment priorities for acquiring, developing and pro-\ntecting significant outdoor recreation resources within a state. The 50-50\nmatching grants cover planning, acquisition and development.\nECONOMIC DEVELOPMENT ADMINISTRATION\nEDA is an agency of the Department of Commerce. It has authority to provide\ngrants and direct loans to non-profit organizations for the planning and con-\nstruction of public works, industrial parks and vocational educational facil-\nities and in general to organize projects designed to stimulate economic\ngrowth and employment.\nEDA supplies planning grants to a county or multi-county organizations. These\ngrants enable the local EDA organization, composed of elected officials and\nprivate individuals, to employ a full time staff. The staff must submit an\nOverall Economic Development Program for the area before it is officially\ndesignated as an EDA district.\nThe fiscal year 1972 appropriation for EDA planning grants was $5.5 million.\nEDA distributed these funds to 124 districts.\nLEGISLATION\nCongress is considering a number of bills which would have a direct impact\non state land use controls. Several of these bills would return control for\n-61-\ndevelopments with regional impact from local government to the states. Other\nbills support state regulation of coastal areas. Overall, these pieces of\nlegislation reflect a growing support in Congress for improved state control\nover large-scale development and over areas of environmental importance.\nLAND USE POLICY AND PLANNING ASSISTANCE ACT OF 1972 (S 632)\nThis Act requires the states to set up a state-wide land use planning pro-\ncess. Each state's land use planning program would focus only on those land\nuse decisions which have an effect outside of the local land use regulatory\nagency. The American Law Institute estimates that only 10 per cent of all\nland use decisions fall into this category.\nThe state planning process is designed to develop a data base on the state's\nland and natural resources, and its population and economic trends, and pro-\njections of the quantity of land needed for various uses. The states are re-\nquired to have a staff and an appropriate planning agency three years after\nenactment.\nThe bill places emphasis on the implementation of the state land use programs\nrather than their substance. It requires state land use programs to exercise\ndeterminative state authority over areas of critical environmental concern,\nlarge-scale developments of more than local significance and key facilities\nand to assure that local regulations don't unreasonably restrict developments\nof regional benefit.* The legislation requires that a land use program deal-\ning with these four areas be developed within five years.\nThe proposed program sets up both carrot and stick for states. The annual\nauthorization is $100 million for eight years. Under the bill, the U.S. gov-\nernment would fund 90 per cent of the state costs for the first five years\n*Land Use Policy and Planning Assistance Act of 1972, Report of the Committee\non Interior and Insular Affairs, U.S. Senate, 1972, p. 52.\n-62-\nand two-thirds of the cost for the next three years.\nSANCTIONS\nIf the states do not meet the requirements in the legislation, the federal\ngovernment cuts off a portion of the state's funds in three federal grant-in-\naid programs. The proportion is 7 per cent the first year and increases to\n21 per cent by the third year. The three programs are the 1970 Airport and\nAirway Development Act, the Land and Water Conservation Act of 1965 and var-\nious federal highway programs excluding the Interstate Highway System.\n\"The three programs for which funds would be withheld are deemed to have the\nmost significant long-range and irreversible impacts upon land-use patterns\nbecause of the exceptional influence they have over public and private devel-\nopment. **\nThe Interior Department estimates that the three programs on which sanctions\nwould be imposed provide $1,756,775,000 to the states. California is the\nstate that could be affected most by the sanctions in the event of noncompli-\nance. It now receives $125 million from the programs. About $9 million could\nbe withheld under the 7 per cent penalty and over $26 million could be with-\nheld under the 21 per cent penalty. Thus, there is substantial incentives\nfor a state to participate in the land use program.\nIf a state is declared ineligible, it may appeal to a three-man board. The\nboard is composed of a governor and an impartial federal official selected\nby the President and an impartial citizen selected by the other two board mem-\nbers.\n*Land Use Policy and Planning Assistance Act of 1972, Report of the Committee\non Interior and Insular Affairs, U.S. Senate.\n-63-\nFEDERAL ROLE\nWhile most of the bill's requirements deal with the ability to implement the\nland use planning process, rather than the substance of the activities, it does\nleave the door open for federal review of areas designated to be of critical\nenvironmental concern. The states cannot exclude from the areas of critical\nenvironmental concern any substantial areas which are of major national signi-\nficance and require special planning and management. If a state requests,\nthe federal government will indicate those areas of major national significance\nbefore the five-year deadline for submission of a land use program. Areas of\ncritical environmental concern, according to the Senate report, include coastal\nwetlands; marshes; other lands inundated by tides; beaches and dunes; signi-\nficant estuaries; shorelands; flood plains of rivers, lakes and streams; scen-\nic areas, forest and related land which require long stability for continuing\nrenewal, etc. In effect, the federal government can control the designation\nof these areas and will guide the states in selecting them.\nINTERAGENCY COOPERATION\nThe administration of the program comes under the Assistant Secretary for\nPlanning in the Department of Interior. However, nine other federal agencies\nmust participate in the federal review of the state programs and the determin-\nation of grant eligibility. In addition, HUD not only makes general recom-\nmendations, but also indicates if it is satisfied with the large-scale devel-\nopment, developments of regional benefit and key facility components of the\nstate land use program.\nFEDERAL-STATE COOPERATION\nFederal grant and loan programs such as water and sewer construction must\nbe consistent with the approved state land use programs. The state land use\n-64-\nagency must indicate its views on applications from state and local govern-\nments. These applications to be reviewed should have significant land use com-\nponents in an area or areas subject to the state land use program.\nThe bill sets up two requirements for federal and state coordination in con-\ntrolling land use in federally-owned lands and in the areas adjacent to fed-\neral lands. The federal agencies owning land within a state must coordi-\nnate their plans, programs and policies for their lands with the state land\nuse agency. If a federal agency plans any changes in the use of their lands,\nit must publish a statement outlining the consistency of the proposed changes\nwith the state and local land use programs. Second, the states must try to\nensure that federal lands are not degraded because of adjacent land uses.\nThis requirement applies particularly to national parks and wilderness areas.\nThe Secretary of Interior, on his own authority or at a governor's request,\ncan set up ad hoc committees to deal with specific conflicts that arise in\nthe management of federal lands and adjacent areas. Representatives of fed-\neral and state agencies, local governments and user groups will sit on the\ncommittees.\nSTATE-LOCAL ROLE\nWhile the states must exercise determinative authority over the four land use\nareas, they have the option of either directly planning for these areas or\nletting local agencies carry out the planning. If a state chooses the latter\noption, it must establish guidelines and controls for the local agencies to\nfollow.\nThe Senate report says: \"The Act does not require or contemplate radical or\nsweeping changes in the traditional relationship and responsibility of local\ngovernment for land-use management. It does, however, require that the states\n-65-\nplay an active role in major land-use planning and management decisions which\nare of regional, state or national concern.\"\nOUTLOOK\nSeveral Senate committees want to review the bill. Both the Public Works\nand Banking, Housing and Urban Affairs Committee chairmen will probably re-\nquest changes. This process of committee review may take several weeks or\nseveral months. Once the bill is finally put up for a vote, it should pass\nbut committee reviews may delay passage this session.\nNATIONAL LAND POLICY AND MANAGEMENT ACT OF 1972 (HR 7211)\nThis legislation is sponsored by Wayne Aspinall, chairman of the House In-\nterior and Insular Affairs Committee. A section dealing with state land use\ncontrol of private lands and a section dealing with the management of public\nlands are both included in the bill (HR 7211).\nPRIVATE LANDS\nThe private lands section is similar to the Land Use Policy and Planning As-\nsistance Act (S 632). The primary difference is the funding level for the\nstate land use programs. The House bill authorizes $204 million spread over\nfive years. The amount and federal share decrease over the five years. The\nauthorization for the first year is $54 million with the federal share at 90\nper cent; for the next two fiscal years, $45 million and a federal contribu-\ntion of 75 per cent, and for years following $30 million with a 50 per cent\nfederal payment.\nThe controls, sanctions and administration of the state land use programs are\nalmost identical to those outlined in the Senate bill. It requires the state\nland use planning programs to establish control over areas of environmental\n-66-\nconcern, large-scale developments, key facilities and developments of reg-\nional benefit.\nIf a state does not establish an acceptable planning process, federal funds\nfor airport, highway and land water conservation are withheld on a graduated\nscale of 7 per cent, 14 per cent and 21 per cent over three years. The Sen-\nate bill designates that these funds are to be held in escrow and given to\nstates when they obtain or regain eligibility. The House bill is more severe\nand stipulates that the withheld funds will be distributed to eligible states.\nThe Assistant Secretary for Land Use Policy and Planning in the Department\nof Interior will administer the program. The House bill sets up a National\nLand Use Policy and Planning Board to coordinate the land-use activities of\nfederal agencies and three national land-use citizen advisory committees for\nfederal agencies, and it encourages citizen advisory councils of 10-15 mem-\nbers for regions, states, districts and localities.\nPUBLIC LANDS\nThe public lands section of the House bill is in part based on the 1970 re-\nport of the Public Land Law Review Commission. Mr. Aspinall was largely res-\nponsible for initiations of the commission's six-year study of the use of\npublic lands.\nThis section requires all federal agencies which manage public lands to draw\nup land use plans. The objective is to establish uniformity in the acquisi-\ntion and management of federally-owned land, for mining and mineral leasing\nclaims, animal grazing leases, timber harvesting, recreational activities and\nother uses. In order to achieve this objective, the bill provides for reten-\ntion of federal ownership of the bulk of public lands, transfer of public\nlands to non-federal ownership for purposes designated by statute, the management\n-67-\nof such lands in a manner that protects the environment, the coordination of\nregional, state and local land management plans, and public participation in\nall procedures leading to the classification of any public plan. *\nREVIEW OF PUBLIC LANDS\nUnder the legislation, Congress will review land set aside by executive with-\ndrawals which includes most national forests in the western part of the coun-\ntry most wildlife refuges and some national monuments. Congress would not re-\nview lands that it has given public status such as national parks and wilder-\nness areas.\nThe Secretary of Interior will have to examine each withdrawal and submit\nlegislation detailing its purpose and necessity. However, the withdrawals\nwill remain in effect unless they terminate or are revoked by Congress.\nWhen land tracts of more than 25,000 acres are to be sold or classified for\na use that would exclude other uses for more than a year, the agencies in-\nvolved would have to seek permission of the Senate and House interior com-\nmittees. Both panels must approve.\nOUTLOOK\nEnvironmentalists are strongly opposing the bill. The review of public lands\nwould encompass almost all lands now managed by federal agencies including the\nBureau of Land Management. It could lead to a change in usage or sale of\nareas already set aside as national forests or wildlife refuges.\nThe Administration is also opposing the bill, and efforts are being made to\nseparate the public lands section and the private lands section. If the pri-\nvate lands section is split off, it will most likely pass the House. Because\nNorman Beckman, \"Toward Development of a National Urban Growth Policy,\"\nJournal of American Institute of Planning, July 1972, p. 246.\n-68-\nthis section is quite similar to the Senate bill (S 632), a Senate-House con-\nference on the two bills would face little difficulty and congressional enact-\nment would probably follow.\nHowever, Wayne Aspinall opposes splitting his bill. If it is not split, en-\nvironmentalists and the Administration are expected to move to defeat it. In\nthat event, legislation dealing with state land use programs covering private\nlands would not come out of Congress this year.\nNATIONAL RESOURCE LANDS MANAGEMENT ACT (S 2401)\nThe Senate is also considering a public lands bill. The National Resource\nLands Management Act (S 2401) gives the Bureau of Land Management a firm oper-\nating charter. It does not deal with public lands managed by other federal\nagencies.\nUnlike the Aspinall bill, this legislation uses existing procedures for execu-\ntive withdrawals such as national parks, monuments or forests. It declares\nthat the federal government should continue to own the lands administered by\nthe Bureau of Land Management (BLM). However, the Secretary of Interior can\nsell or dispose of these lands after considering environmental management and\npublic objectives. Finally, the bill requires the Secretary of Interior to\nmake an inventory of all BLM lands giving priority to areas of critical en-\nvironmental concern and potential wilderness.\nNATIONAL COASTAL ZONE MANAGEMENT ACT (S 3507)\nThis Act, which has already passed in the Senate, authorizes the Secretary\nof Interior* to make grants to coastal states for management programs covering\n*The Act originally placed this program under the Secretary of Commerce. How-\never, the House version of this bill authorizes the Secretary of Interior to\nadminister the program.\n-69-\nthe land and water resources in coastal areas. The coastal states are those\nbordering on the Atlantic or Pacific Ocean, Gulf of Mexico and the Great Lakes.\nThe outer limit of the coastal zone is the limit of states' legal authority;\nthe inner limit is flexible. It extends inland only far enough to allow the\nmanagement program to control the lands whose use has a direct impact on the\ncoastal water. Coastal waters include harbors and estuary-type areas such\nas bays and marshes.\nADMINISTRATION\nThe development grants to the coastal states cannot exceed two-thirds of the\ncost of a state management program, and no state is eligible to receive more\nthan three annual grants. Once the Secretary of Interior approves a state's\ncoastal zone management program, it is eligible for annual administrative grants\ncovering up to two-thirds of the cost of administering the program. A state\nmay pass-through some of these funds to local, areawide or interstate agencies.\nTo be eligible for an administrative grant the bill specifies that a state\nmust establish one of the following methods to control land use: (1) state\nestablishment of criteria and standards for local implementation, subject to\nadministrative review and enforcement of compliance; (2) direct state land\nand water use planning and regulation; or (3) coastal state administrative re-\nview for consistency with the management program of all development plans,\nprojects, or land and water regulations, including exceptions and variances\nthereto proposed by any state or local authority or private developer, with\npower to approve or disapprove after public notice and an opportunity for\nhearings. \"*\n*National Coastal Zone Management Act of 1972, Report of the Senate Committee\non Commerce, April 19, 1972, p. 13.\n-70-\nThe bill also establishes grants for the acquisition, development and opera-\ntion of estuarine sanctuaries. The grants are designed to create national field\nlaboratories to gather data and make studies of the natural and human pro-\ncesses occurring within and directly affecting the estuaries.\nBUDGET AUTHORIZATION\nThe authorization for the program development grants is $12 million for FY 1973\nand the necessary sums until the end of FY 1977. The funding for the admin-\nistrative grants is $50 million to be distributed as necessary each year until\nexpended. The bill allocates $6 million for the estuarine sanctuary grants.\nFEDERAL-STATE COOPERATION\nThe Act sets up several requirements for intergovernmental and interagency\ncooperation. Federal agencies must administer programs in the coastal zones\nso that their activities are consistent with the state management programs.\nA federal agency cannot undertake a development project in a coastal zone\nthat is inconsistent with a state program unless the Secretary of Interior\nfinds the project is consistent with the objectives of the legislation.\nState and local applications for federal grants for programs impacting coastal\nareas must include the coastal management agency's statement on the relation-\nship of the proposed program to the state management program.\nThe Act requires applicants for a federal license or permit to conduct any\nnew activity in a coastal zone to submit a state certification that the pro-\nposed activities comply with the state's approved management program.\nCOASTAL ZONE MANAGEMENT ACT (HR 14146)\nThe House has recently passed a Coastal Zone Management Act which is simi-\nlar to the Senate bill. It sets up two-thirds development and administra-\ntive grants for state coastal management agencies and 50 per cent grants for\n-71-\nacquisition and development of estuarine sanctuaries.\nThe House bill outlines the characteristics of the state management programs\nin greater detail. Each program must include: (1) an identification of the\nboundaries of the portions of the coastal state subject to the program;\n(2) a definition of what will constitute permissible land and water uses;\n(3) an inventory and designation of areas of particular concern; (4) an iden-\ntification of the means by which the state proposes to exert control over\nland and water uses; (5) broad guidelines on priority of uses in particular\nareas; and (6) a description of the organizational structure proposed to\nimplement the management program.\nThe bill also authorizes the Secretary of Interior to designate marine sanc-\ntuaries. These areas would be set up to preserve or restore their conser-\nvational, recreational, ecological or esthetic values. They would be areas\nlocated outside the coastal zone and superjacent to the subsoil and seabed\nof the continental shelf.\nOUTLOOK\nThere was little opposition to the coastal zone legislation in the House.\nSince the Senate and House bills are similar, final approval for a coastal\nzone management act will probably come in the next few months. A Senate-\nHouse conference is now considering the two bills.\nSUMMARY OF LEGISLATION\nThe table below outlines the major aspects of the proposed congressional\nlegislation discussed in this section.\n-72-\nCongressional Land Use Proposals\nNon-Federal Lands\nS 632\nHR 7211\nPurpose\nProvides federal grants-in-aid\nProvides assistance to states for\nto assist states develop land\nland use programs and establishes\nuse programs.\npublic land policy (see below).\nAdminis-\nPlaces control within Depart-\nPlaces control within Department\ntration\nment of Interior under new\nof Interior under new office of\noffice of land use policy ad-\nland use policy administration.\nministration.\nPlanning\nRequires states to develop land\nRequires state to develop land use\nProcess\nuse programs, within five years\nplans for areas of critical envir-\nfor areas of critical environ-\nonmental concern, key facilities,\nmental concern, key facilities,\ndevelopments of regional benefit,\ndevelopments of regional benefit\nlarge-scale developments, new sub-\nand large-scale developments.\ndivisions, new communities.\nSanc-\nIf state does not develop an ap-\nIf state does not develop accept-\ntions\nproved program within five years,\nable program by July 1, 1976,\nfederal grants-in-aid (for air-\nfederal grants-in-aid (for airports,\nport development, highways and\nhighways and land and water conser-\nland and water conservation fund)\nvation fund) are withheld at 7%,\nare withheld at an increasing\n14% and 21% over three years.\nrate of 7%, 14% and 21% over\nFunds revert to U.S. Treasury to be\nthree years. Funds held in es-\ndistributed to qualified states.\ncrow until state qualifies.\nGrants\nAuthorizes $100 million annual-\nAuthorizes $204 million over five\nly for eight years, with fed-\nyears: $54 million the first year\neral share 90% for first five\nwith 90% federal share, $45 mil-\nyears and two-thirds for last\nlion the second and third years\nthree years.\n(75% federal share), $30 million\nthe last two years (50% federal\nshare).\nAppeals\nIf a state is declared ineli-\nNo provisions for appeals.\ngible for grants, the Presi-\ndent must name an ad hoc hear-\ning board which must rule with-\nin 90 days.\nInter-\nRequires federal-state coordi-\nSets up national land use policy\nGovern-\nnation and cooperation in plan-\nand planning board, national com-\nmental\nning and management of federal\nmittees and advisory councils to\nCooper-\nand adjacent federal lands.\ncoordinate federal and non-federal\nation\nland use planning.\n-73-\nFederal Lands\nS 2401\nHR 7211\nCover-\nDeals only with lands adminis-\nApplies to all federal lands.\nage\ntered by the Bureau of Land\nManagement (BLM).\nClassi-\nRequires the Department of In-\nRequires federal agencies to in-\nfication\nterior to inventory all BLM\nventory all public lands and clas-\nlands with priority to areas\nsify for uses of maximum public\nof critical environmental con-\nbenefit.\ncern and potential wilderness.\nDisposal\nAuthorizes Department of Inter-\nAuthorizes disposal of any federal\nior to sell or dispose of BLM\nlands meeting certain criteria.\nlands after considering envir-\nonmental management and public\nobjectives.\nWith-\nUses existing procedures for\nRequires House and Senate Interior\ndrawal\nexecutive withdrawals of fed-\nCommittees to review all executive\neral lands for national parks,\nwithdrawals over 25,000 acres.\nmonuments, forests, etc.\nCoastal Zone Management\nS 3507\nHR 14146\nPurpose\nProvides financial assistance\nProvides assistance to states for\nto coastal states to develop\nthe management, protection and de-\na management program for the\nvelopment of the land and water re-\ncoastal zone.\nsources of the nation's coastal\nzone.\nAdminis-\nPlaces control of the program\nPlaces control of the program under\ntration\nunder the Secretary of In-\nthe Secretary of Interior.\nterior.\nGrants\nAuthorizes $12 million annu-\nAuthorizes $15 million annually to\nally for program development\n1975 for program development grants\ngrants (federal share 2/3),\n(federal share 2/3), and $50 mil-\nand $50 million annually for\nlion for 1974 and 1975 for adminis-\nadministrative grants (federal\ntrative grants (federal share 2/3).\nshare 2/3). Also authorizes\nAlso authorizes 50% grants for pur-\n50% federal grants for pur-\nchase of estuarine sanctuaries ($6\nchase of estuarine sanctuaries\nmillion annually).\n($6 million annually).\nSanc-\nTermination of grant.\nTermination of grant.\ntions\nThis proposed federal legislation indicates a strong trend toward state regu-\nlation for land use decisions with regional impact. The purpose of the legis-\nlation is to assist the states in developing a land use process which promotes\n-74-\neconomically and environmentally sound uses of the nation's resources.\nThe California Initiative differs from the basic trend indicated in these\nbills in several respects. The Initiative seeks to control all types of de-\nvelopment. S 632 and HR 7211 focus on large-scale developments, key facil-\nities and areas of critical environmental concern. The Initiative aims at\na land use plan for the coastal area whereas S 632 and HR 7211 emphasize the\ndevelopment of an effective land use planning process.\nThe proposed legislation requires that the federal assistance go to a state\nagency established by the governor. This agency must coordinate its activi-\nties with other state, regional and local agencies. The Initiative sets up\na commission which is not appointed by the governor, and does not require\nthe commission to coordinate its activity with other governmental agencies.\n-75-\nCURRENT PROGRAMS [STATES]\nTHE STATE ROLE\nINTRODUCTION\nTHE STATE ROLE\nINTRODUCTION\nStates have the constitutional authority to control the use of land within\ntheir jurisdiction, but they have typically delegated this authority to the\nlocal level. The state role, up until recently, has been limited to owner-\nship and management of lands, the location and development of major facilities\nand tax incentives.\nThe impact of state land ownership is not limited to state lands. The loca-\ntion of these lands and their use can influence and in some cases determine\nthe uses on surrounding properties. The location of government centers and\ncapital facilities guide growth patterns and are the result of state policy.\nFinally, through the use of tax incentives, states can indirectly influence\nthe expansion of urban areas and can support preservation of agricultural\nand open space lands.\nHowever, the importance of these functions is limited in comparison to the\nrole played by the local government. The local government through zoning\nand subdivision legislation has direct control over the location of land uses.\nIn recent years, a number of states have taken steps to recover some of their\npower over land use control. The section is a detailed examination of this\ntype of land use legislation which states have enacted over the last ten years.\nIt is the focus of this discussion of the state role for several reasons.\nFirst, the California Coastline Initiative is an example of this type of leg-\nislation, and comparisons can be made between it and legislation already\nenacted by other states. Second, several bills before Congress implicitly\nrequire states to establish land use control legislation.\n-76-\nThe state laws passed during the last decade on land use fall into four cate-\ngories:\n(1) direct statewide control of land uses\n(2) statewide criteria and standards for land use decisions by local\ngovernments\n(3) direct state control of land uses in selected areas\n(4) state criteria and standards for local land use decisions in\nselected areas\nA summary of state legislative requirements and their relation to the Calif-\nornia Coastline Initiative is included at the end of the four sections.\nDIRECT STATEWIDE CONTROL\nThree states have enacted legislation which establish statewide land use con-\ntrols. The tool for carrying out these controls is a statewide comprehensive\nplanning process. When this type of process is used along with police powers\n(such as zoning and subdivision laws), the state has an opportunity to influ-\nence economic and physical development.\nTypically the state draws up its comprehensive plan. However, the adminis-\ntration of the plan may be solely in the hands of the state, or as is usually\nthe case, it may be under a joint arrangement between the state and local\ngovernments.\nThree states utilize the statewide approach. The most important example is\nthe State of Hawaii.\nHAWAII\nADMINISTRATION\n-77-\nThe Hawaii State Land Use Law of 1961 gave the state much greater control than\nany other state had previously held over land use. The law set up a state\nLand Use Commission and instructed the commission to divide the entire state\ninto four districts: conservation, agricultural, rural and urban. The land\nin the urban district could be used for whatever purpose local zoning regula-\ntions allowed. Land use in the agricultural and rural districts had to comply\nwith the regulations of the State Land Use Commission, while land use in the\nconservation district had to meet the regulations of the state's Department\nof Land and Natural Resources.\nSeveral factors provided the impetus for the Hawaii land use legislation.\nThese were the economic importance of agriculture, the imminence of develop-\nment pressures and associated threats of urban sprawl and the tradition of a\nstrong, centralized government.\nDuring the law's ten years of operation, three basic policies have guided\nthe administrators. (1) The commission should preserve prime agricultural\nland for agricultural use. (2) It should encourage tourist-attracting de-\nvelopment without disturbing the attraction of the natural landscape. (3)\nIt should provide compact and efficient urban areas where people can live at\nreasonable cost.\nThe state Land Use Commission membership is composed of seven private citizens\nplus the director of the Department of Land and Natural Resources and the\ndirector of the Department of Planning and Economic Development. The commis-\nsion has carried out the instructions of the statute by dividing the state\ninto four districts: urban, rural, agricultural and conservation.\nCONTROLS AND CRITERIA\n-78-\nThe urban districts include urban areas and enough land to accommodate urban\ngrowth for ten years. Rural districts generally contain low-density residen-\ntial development on lots of at least one-half acre. The agricultural dis-\ntricts cover both crop and grazing land as well as agriculturally-oriented\nindustry. Two-thirds of the conservation districts are publicly-owned Forest\nand Water Reserve Zones. The other third is private land primarily in moun-\ntainous areas.\nThe commission controls urban growth by designating the boundaries for the\nurban districts. Intensive development can only occur in these areas. In ef-\nfect, both state and county approval are necessary for development in urban\nareas. Uses permitted in the urban districts are under county zoning regu-\nlations, and a county could zone a portion of an urban district for agricul-\ntural uses.\nThe use of lands in the rural and agricultural districts is governed by Land\nUse Commission regulations. The commission decides on requests for boundary\nchanges and special permits under a tight time schedule established by statute.\nThe appropriate county planning agency must review each petition and the com-\nmission holds public hearings in the county where the land is located. Count-\nies may issue special use permits in these districts subject to final approval\nby the commission.\nThe Department of Land and Natural Resources has sole regulation over use in\nthe conservation districts. Currently, the department divides the conserva-\ntion area into two general subzones, a Restricted Watershed zone and a general\nuse zone. Uses allowable in the general use zone include residences, resorts,\nhotels, golf courses, marinas, etc. The governing body of the department\npasses on all applications for special use permits in the conservation zones.\n-79-\nASSESSMENT\nThe commission does not have guidelines from a master plan to aid its decis-\nion-making process. Hawaii adopted a state plan in 1960. However, the\nrapid population growth and economic changes that have taken place since\nthen have made the 1960 plan obsolete. The state completed a revision of the\nplan in 1967, but the planners specifically avoided setting land use policies.\nThe state planners indicated that the commission was responsible for land use\nplanning. However, while the commission has been directed to plan, it has not\nbeen given any planning capability. The commission's planning activity is\nlargely limited to setting boundary lines for the rural and agricultural dis-\ntricts.\nThe commission's staff is quite small and the staff size limits the enforce-\nment capability. The commission does not attempt to follow up on permits to\nsee that conditions and restrictions are obeyed, and it does not check on de-\nvelopment undertaken without a permit. The statute directs the counties to car-\nry out enforcement, but it is difficult to determine the degree of enforce-\nment.\nViolations of the law are punishable by a fine of not more than $1,000. Each\nday of the violation is considered a separate offense.\nThe tax policies and land use policies of the state often appear to conflict\nwith each other. Hawaii has two tax laws which affect land use policies.\nLand is taxed at a higher rate than buildings, to encourage improvement of\nurban land. This approach is consistent with the narrow urban limits policy\nof the Land Use Commission but it may have contributed to excessive congestion.\nThe tax laws allow a land owner to obtain lower assessments by dedicating his\n-80-\nproperty to agricultural use. To obtain this classification an owner must\nsubmit a request to the Department of Taxation. The determination of the\nrequest is based \"upon the productivity ratings of the land in these uses for\nwhich it is best suited, a study of the ownership, size of operating unit\nand present use of surrounding similar lands and other criteria as may be ap-\npropriate.\"\nLand in proximity to existing urban areas is the only land likely to be dedi-\ncated. Dedication of this type of land may limit the commission's ability\nto control orderly urban expansion. \"Unless land is dedicated the statutory\ndirection that the assessors give consideration to the land use classifica-\ntions set by the Land Use Commission has apparently had little effect. In\naddition, the tax laws have been criticized for permitting the dedication of\nland for agricultural purposes in districts zoned urban by the Land Use Com-\nmission, thus defeating the purpose of the Land Use Law. \"*\nTourism and urbanization have had an important impact on implementation of\nthe law. The law has been administered to strongly encourage the develop-\nment of tourist facilities in many natural or agricultural areas of the state.\nThe state has attempted to guide this development to preserve the natural en-\nvironment.\nThe commission has tried to limit other types of new development to areas\nnext to urban zones. This policy has prevented urban sprawl. However, it\nhas also produced a rapid increase in housing costs. This policy has created\na shortage of land and forced development into areas where site improvement\ncosts are high. \"The land shortage has furthermore resulted in an absence\nof competition, thereby encouraging each segment of the housing industry to\nincrease its profit margin. The overall consequence is that housing costs\n*Fred Bosselman and David Callies, The Quiet Revolution in Land Use Control,\nCouncil on Environmental Qualitv. 1972, p. 32.\n-81-\nin Hawaii are most than double the national average. **\nHawaii's present situation causes strong conflicts between development and\nconservation. The Land Use Law provides a method for the state to resolve\nthese conflicts on the basis of a statewide policy. \"The decision-making\nprocess would probably be more effective, however, if more closely-tied to\na state planning process that provided the regulators with more current data\nand better analysis of the relevant policy considerations. \"**\nVERMONT\nADMINISTRATION\nIn 1970, the Vermont legislature passed an act requiring statewide land use\nplanning to govern all essential aspects of growth. The Land Use and Develop-\nment Act, known as Act No. 250, is designed to promote environmental objec-\ntives as well as social and economic aims. It sets up an Environmental Board\nand nine district commissions to draft and enforce a plan. The plan is enforced\nby use of permits, which are required for subdivisions of ten or more lots\nand for commercial and industrial developments.\nAt the time the law was passed there was little local zoning in Vermont. De-\nvelopments over one acre require a permit if they are located in an area with\nno local zoning. This feature of the legislation is an incentive to local\ngovernments to define their land use objectives and set up zoning controls.\nThe law establishes a state/local partnership in which the state controls the\nlarger developments and those areas outside local government jurisdiction.\nIt encourages the local governments to control the smaller, in-town develop-\nments.\n*Fred Bosselman and David Callies, The Quiet Revolution in Land Use Control -\nSummary Report, Council on Environmental Quality, p. 6.\n**Bosselman and Callies, op. cit., p. 7.\n-82-\nThe lack of local zoning in Vermont probably played an important role in\nenactment of this legislation. Local governments were not regulating the\nlarge-scale developments of vacation homes.\nThe legislature was already concerned about the overall physical growth with-\nin the state when a proposed large-scale land development in southern Vermont\nbecame the focus of public interest. In response to citizens' objections,\nthe Governor of Vermont appointed a study commission, known as the Governor's\nCommission on Environmental Control. The Commission's report, put out in\nJanuary 1970, found that land development by large corporations had become a\nmajor activity in the state and posed an immediate threat to the state's en-\nvironment. Act No. 250, passed later that year, in part adopted the recommen-\ndations of the Commission.\nAn Environmental Board and nine district commissions administer the Act. The\nBoard is made up of nine members, all appointed by the governor. The Chair-\nman of the Board serves two years and the other members serve four years.\nThe Act does not require that members represent any particular social or\neconomic group.\nThe nine District Environmental Commissions are sub-agencies of the Environ-\nmental Board. The jurisdictions of the district commissions follow county\nboundaries. Each commission has three members and these are also appointed\nby the governor.\nThe Environmental Board sets policy and serves in a quasi-judicial manner to\nreview the decisions of the district commissions. The district commissions\ncarry out the day-to-day responsibilities.\nThe Environmental Board may appoint a full-time executive officer and other\n-83-\nprofessional and administrative staff that it needs and can afford. The\ntotal amount spent annually on the land use program is $100,000.\nThe legislation directs the Environmental Board to prepare three plans. The\nInterim Plan simply describes the present land uses and natural resources.\nThe Capability and Development Plan is to be a guide to the coordinated, ef-\nficient and economic development of the state including distribution of pop-\nulation and uses of the land. Finally, the Land Use Plan will be a map indi-\ncating the results of the Capability and Development Plan.\nCONTROLS AND CRITERIA\nA permit system for commercial and industrial developments as well as sub-\ndivisions is designed to ensure implementation of the land use plans. The\nAct states that business, individuals and government agencies must get a per-\nmit for:\n(1) The construction or improvement on a tract or tracts of land owned or\ncontrolled by a person, involving more than 10 acres of land within a radius\nof five miles of any point on any involved land, for commercial or industrial\npurposes,\n(2) The construction of improvements for commercial or industrial purposes\non more than one acre of land within a municipality which has not adopted\npermanent zoning and subdivision bylaws,\n(3) Any housing or multi-family dwellings, condominiums or trailer parks which\ninvolve ten or more units and are owned or controlled by a person within a\nradius of five miles of any point on any involved land, or\n(4) Construction or improvements on a tract of land involving more than ten\nacres of land which is to be used for municipal or state purposes.\n(5) Construction or improvements for commercial, industrial or residential use\nabove the elevation of 2,500 feet.\n-84-\nPermit applications are filed with one of the nine district commissions.\nThe state Agency of Environmental Conservation and the County Foresters re-\nview all permit applications. The Agency of Environmental Conservation form-\nulates its policy on each application and files a statement of its views with\nthe appropriate district commission.\nA hearing is held after the Agency of Environmental Conservation gives the\ndistrict commission its pre-hearing position paper. The commission must hold\na hearing if anyone required to receive notice requests a hearing. Also an\nadjoining landowner may request a hearing.\nThe law requires the permit applicant to give notice of his filing to any\nmunicipality where the land is located, any municipal or regional planning\ncommission affected, any adjacent Vermont municipality, municipal or region-\nal planning commission of the land is located upon a boundary. The applicant\nmust also publish a notice in the local newspaper.\nThe commission may choose to order a hearing on its own. If no one requests\na hearing and the commission does not order one, the commission must act on\nthe application within 60 days after the application is filed, or the appli-\ncation is automatically approved.\nAn applicant may appeal the commission's decision to the Environmental Board.\nThe state appellate court would review any appeal from the Board's decision.\nThe legislation states that before issuing a permit the district commission\nor board must find that the subdivision or development:\n(1) Will not result in undue water or air pollution. In making this deter-\nmination it shall at least consider: the elevation of land above sea level;\n-85-\nand in relation to the flood plains, the nature of soils and sub-soils and\ntheir ability to adequately support waste disposal; the slope of the land\nand the effects of effluents; the availability of streams for disposal of\neffluents; and the applicable health and water resources department regula-\ntions.\n(2) Does have sufficient water available for the reasonably foreseeable\nneeds of subdivision or development.\n(3) Will not cause an unreasonable burden on an existing water supply, if\none is to be utilized.\n(4) Will not cause unreasonable soil erosion or reduction in the capacity\nof the land to hold water so that a dangerous or unhealthy condition may re-\nsult.\n(5) Will not cause unreasonable highway congestion or unsafe conditions with\nrespect to use of the highways existing or proposed.\n(6) Will not cause an unreasonable burden on the ability of a municipality\nto provide educational services.\n(7) Will not place an unreasonable burden on the ability of local govern-\nments to provide municipal or governmental services.\n(8) Will not have an undue adverse effect on the scenic or natural beauty\nof the area, aesthetics, historic sites or rare and irreplaceable natural\nareas.\n(9) Is in conformance with a duly adopted development plan, land use\nplan or land capability plan.\nAn application cannot be denied solely for criterion (5), (6) and (7). How-\never, the law clearly gives the Board and commissions wide discretion in at-\ntaching conditions to the permit.\nEither public or private landowners may petition for variances from adopted\n-86-\nland use plans. Applicants request variances from the appropriate commission,\nwhich will hold a hearing if someone requests it.\n\"No variance from the final Land Use Plan may be granted unless the Peti-\ntioner shows that:\n(1) the land is needed for a different use;\n(2) the land is useable for the proposed use; and\n(3) conditions and trends of development have so changed since the adoption\nof the existing classification as to warrant reconsideration.\" The Envir-\nonmental Board will set out more detailed regulations on the basis of these\ncriteria.\nThe commissions act on the petitions for variances on the basis of the\nBoard's regulations. The applicant can appeal a denial to the Board and can\nsubsequently appeal to Vermont's highest appellate court.\nASSESSMENT\nThere are several problem areas in the law and its implementation includ-\ning exemptions from the law, the interaction of planning and regulation and\npolicy implementation. The law does not cover pre-existing development\nplans and this factor means that unregulated development will continue in\nsome areas of Vermont. The large acreage requirements do not take into ac-\ncount the potential damage from strip development. Other types of exemp-\ntions do not bear any relation to the potential for damage. Even primitive\nrecreational development requires a permit, but farming and forestry do not.**\n*Elizabeth Haskell, et. al., Managing the Environment, Woodrow Wilson Cen-\nter for Scholars, 1971, p. 304.\n**Fred Bosselman and David Callies, The Quiet Revolution in Land Use Control,\nCouncil on Environmental Quality, 1971, p. 80.\n-87-\nThe creation of new planning agencies has been one of the successes of the\nlaw, but the law does not specify which plans have priority. The Environ-\nmental Board's policy positions do not become a part of the state plans.\nThe district commissions can comment on the plans, but they do not play any\nrole in their preparation.\nMost of the planners view the plans as flexible instruments which must adopt\nto changing needs. However, many involved in the review process see the\nstate and regional plans as zoning maps. Commission members and developers\napparently will use the land use map just as a zoning map would be used. \"The\ndifference between planning in its traditional sense and planning having the\naugmented status provided by the Environmental Control Law accounts for con-\nsiderable friction in the permit review process and for the deliberate pace\nat which the organization of the statewide planning process is proceeding. \"*\nThe sophistication of local parties to a hearing affects the nature of the\nadversary proceedings. One result of the law may be greater use of zoning\ncontrols and urban planning at the local level since the law doesn't apply to\ndevelopments under acres in zoned towns and town planning is a requirement\nfor permit issuance.\n\"The Environmental Control Law has been part of a massive holding action by\nthe State of Vermont, opposing unplanned random development until the state's\npolicies and priorities could be revised to deal with the pressures. The\neffort began with expanded local powers, and when pressure continued to\nbuild without substantial local response, the Environmental Control Law and\nvarious administrative rulings... resulted. \"**\n*Ibid., p. 82.\n**Ibid., p. 89.\n-88-\nSince the law's inception, the commissions have been evaluating develop-\nment according to standards suggested by state agencies on a case-by-case\nbasis. They have applied broader policies on the local and regional level\nand in some cases have enforced statewide policies. However, longer range\nplans must give the overall direction.\n\"Despite its problems, the administration of the Law seems to be progress-\ning well. The critical process, however, is the preparation of state plans\nthat can provide both flexible guides for developers and standards for the\nregulators. The presentation of these plans in 1973 will provide the real\ntest of Vermont's land regulatory system.\nMAINE\nADMINISTRATION\nMaine has also established a set of statewide land use controls. In 1970,\na statute gave the states' Environmental Improvement Commission extensive\npower to regulate land developments. Any development of 20 acres or more\ncome under the jurisdiction of the Commission.\nMaine, like Vermont, has not had extensive local zoning and developers did\nnot face restrictions in the way they used land. Recently, there has been\na large increase in the number of developments, and second-home industry\nthreatened to alter some of Maine's scenic areas. In addition, several com-\npanies proposed heavy industries near some of Maine's most valued natural\nsights. These two factors created the impetus for the legislation.\nThe Governor appoints ten members to the Environmental Improvement Commis-\nsion for a period of three years. The membership must be made up of two rep-\nresentatives of manufacturing interests, two from municipalities, two\n*Ibid.\n-89-\nrepresenting conservation interests, two representing the \"public,\" and two\nmust be knowledgeable about air pollution.\nThe law authorizes an administrative staff and a director. It also encour-\nages the Commission to utilize the skills and knowledge of other state agen-\ncies. Total appropriations for the Commission in FY 1971 were just over $1\nmillion. These appropriations included $85,000 specifically for land use\ncontrol.\nThe Commission's responsibilities other than land use control are:\n(1) Recommendation of new water quality standards to each legislature;\n(2) Supervision of the waste treatment plant construction program and pro-\nvision of technical assistance on waste control to industries and towns;\n(3) Promulgating ambient air and emission standards for the legislature to\nact on;\n(4) Enforcement of all regulations under its jurisdiction;\n(5) Establishment and maintenance of standards for the operation of muni-\ncipal waste treatment plants;\n(6) Approval of plans for proposed municipal drainage systems;\n(7) Rule on applications for variances from air and water quality standards;\n(8) Register sources of air contamination; and\n(9) Undertake research in waste disposal.\nCONTROLS AND CRITERIA\nIn land use control, the law instructs the Commission to control the location\nof large developments SO that \"such developments will be located in a manner\nwhich will have a minimal adverse impact on the natural environment of their\nsurroundings.\" The statute justifies state level control by stating that\n\"many developments because of their size and nature are capable of causing\n-90-\nirreparable damage to the people and the environment in their surroundings\nand that the location of such developments is too important to be left\nonly to the determination of the owners of such developments.\"\nThe method for achieving control over proposed developments is the permit sys-\ntem. The Commission requires a permit from the following types of develop-\nment:\n(1) A commercial or industrial development occupying 20 acres or more; and\n(2) A development which includes drilling or excavating of natural resources.\nThe Act excludes logging which is Maine's major industry. However, it clear-\nly includes industrial facilities such as factories, major commerce such as\nshopping centers and large housing developments. The Act is not clear wheth-\ner a development by a public agency requires a permit.\nA developer with plans coming within the statutory jurisdiction must file a\npermit application with the Commission. Within 14 days, the Commission must\neither call for a hearing or approve the application. The Commission's dis-\ncretion is limited to four factors:\n(1) \"The financial ability of the developer to fully complete the project,\nincluding facets such as solid and liquid waste disposal and water supply;\n(2) \"The ability of the project as planned to avoid the hindrance of traf-\nfic movement and provide adequate parking and loading areas;\n(3) \"The proposed development has made adequate provision for fitting it-\nself harmoniously into the existing natural environment and will not adver-\nsely affect existing uses, scenic character, natural resources or property\nvalues in the municipality or in adjoining municipalities; and\n(4) \"That the development will be consistent with the type of soil involved. \"*\n*Elizabeth Haskell, Managing the Environment, p. 326.\n-91-\nAn applicant can appeal the Commission's decision to the Supreme Judicial\nCourt within 30 days. The law does not deal with the question of appeal from\norders placing conditions without a hearing.\nThe statute appears to permanently preclude any heavy industry or deep and\nsurface mining from previously undeveloped areas. Mining and heavy industry\ncannot locate in an area without adversely affecting \"existing uses, scenic\ncharacter or property value in adjoining municipalities. II Documented\nlegislative history does not clarify the meaning of this language. The leg-\nislature may have intended to limit heavy industry and mining to areas already\ncontaminated by such activity. The statute defines natural environment to\ninclude: \"the character, quality and uses of land, air, and waters in the\narea likely to be affected by such development, and the degree to which such\nland, air and waters are free from non-naturally occurring contamination.\"\nHowever, \"if the legislature did intend to limit future heavy industry or min-\ning to their present locations, and preserve those areas where the environ-\nment is now 'free from non-naturally occurring contamination,' then the stat-\nute does not make this clear. 11*\nASSESSMENT\nThe Commission has assigned only one staff member and an assistant to proces-\nsing the permit applications. Because of the limited budget, the Commission\ndoes not have staff to investigate information in permits nor to follow up\non enforcement of conditions in permits it issues. However, the staffs of\nother state agencies assist the Commission during the permit review process.\nThe law has created much public interest; and, because of this, the Commis-\nsion generally learns of new development activity. The Commission is appar-\nently limiting its focus to particular areas and types of development. It\n*Ibid., p. 326.\n-92-\nprocessed only 136 applications in its first 15 months. The small number in-\ndicates the Commission's selectivity. \"Thus, for example, waste-discharge\nlicenses for emissions into existing sewer systems have been required only\nwhere the effluent increased the load 'significantly,' i.e., by 25 per cent\nor more. In general the Commission is exercising its jurisdiction within\nurban areas only to a limited degree.\nThe primary control problem is the lack of a check procedure once the Commis-\nsion issues permits. The failure to verify that conditions attached to per-\nmits have been met has made it difficult for prospective real estate buyers.\nThey cannot determine if the property has been developed according to the\nlaw.\nThere have been only a few proposals for heavy industry. The State's Depart-\nment of Economic Development encourages light industry rather than heavy in-\ndustry to come to Maine. Consequently, the Commission's real workload has\nbeen the processing of permits for residential subdivisions. As of August 5,\n1971, 83 per cent of the applications processed by the Commission have been\nfor the construction of housing, about half of these for seasonal housing. \"**\nThe Commission's decisions on permits may be aggravating the state's housing\nshortage. Mobile home sales are leading permanent home sales three to one.\nSome friction has developed between the Commission and local reviewing agen-\ncies when the locality thought it was more capable of evaluating an applica-\ntion. Normally, however, the state and local agencies have not come into\nconflict. \"The existing harmony between state and local government undoubtedly\nstems from the fact that much of Maine is wholly without land use controls.\n*Fred Bosselman and David Callies, op. cit., p. 196.\n**Fred Bosselman and David Callies, op. cit., p. 198.\n-93-\nOnly one-third of Maine's townships are 'organized' into municipal corpora-\ntions, and of these, only 15 per cent are zoned. \"*\nFinally, there is no overall state plan. \"The major question for the future\nis whether the state can expand the Site Location Law into a more comprehen-\nsive land regulatory system that leaves the local issues to local governments\nbut deals with major development proposals in the framework of a broader con-\nception of state planning than the current Law contains. \"**\nSTATEWIDE CRITERIA AND STANDARDS\nSeveral states have enacted legislation which guide the land use decisions\nof local agencies. In effect, the state sets up the criteria on which local\nagencies base their decisions or the state draws up land use controls for\nthose areas of the state which are not regulated. Three states that have\ntaken this approach are Colorado, Oregon and Washington.\nCOLORADO\nADMINISTRATION\nThe state legislature passed three bills in 1971 collectively called the Col-\norado Land Use Act. The bill passed because there was considerable concern\nover new construction of recreational and second-home development.\nThe legislation did several things to increase the effectiveness of planning\nin Colorado. The Land Use Commission was created in 1970. This Act increased\nthe Commission's membership from seven to nine, and it established an advis-\nory committee made up of representatives from commerce, industry, agriculture,\nconservation and natural resources together with four members of the General\n*Ibid., p. 198.\n**Ibid., p. 199.\n-94-"
}